State v Manda and Langer [1989] PGNC 26; N805 (13 November 1989)

Unreported National Court Decisions

N805

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(CR. 313 OF 1989)
STATE
V
PETER NOKI MANDA AND WILLIAM HENRY LANGER

Lae

Hinchliffe J
13 November 1989

CRIMINAL LAW - Robbery - Plea of not guilty - Defence of mistaken identity - Need to caution about correctness of identification before convicting upon identification evidence - Circumstantial evidence - Series of events leading to the inference or conclusion of guilt.

The two accused pleaded not guilty to the charge of robbery. The second accused had further pleaded not guilty to the charge of attempting to pervert the course of justice by attempting to induce a witness to give false testimony.

Held:

(1) The quality of the identi ying evidence against the accused in the circumstances of this case was poor.

(2) ;&&#1rcntialencelence st bost both accused does not lead to the inference or c or concluonclusion sion of guof guilt.

(3) &#1ccord both accused are found not guilty.

Casb>Cases Cies Cited:

The following cases are cited in the judgment.

Paulus Pawa v. The State [1981] PNGLR 498.

Tria>Triall

This was a trial on charges of robbery and attempting to pervert the course of justice.

Counsel:

I. Langford, for the State.

C. Inkisopo, for the first accused.

Cur adv vult.

13 November 1989

HINCHLIFFE J: The both accusve pleaded &ded “not guilty” that they on the 21st December, 1988 at Nadzab stole from John Kil and two others with threats to use actual violence K212,664-67 and 587 grams of gold the property of the Papua New Guinea Banking Corporation and K52,500 the property of the Bank of South Pacific Limited.

Particulars: On the same day aforesaid William Henry Langer allowed Peter Noki to enter a security vehicle and steal with threats to use actual violence as aforesaid.

William Henry Langer has pleaded “not guilty” that he on the 29th December 1988 at Lae exercised his authority as Manager in charge of Lagona Kasup by causing her to permit him to write on her witness statement dated the 29th December, 1988 and by instructing her to make deletions on that statement, thereby attempting to induce her, a person to be called as a witness in the committal for trial of Robert Maxwell Smith for robbery, to give false testimony in the said committal proceedings.

Particulars: The words he wrote.

“on a chair”

“and Reva followed him.”

“Back”

“Bill asked Reva about Steamship money it was still on A4.”

“Time 11.15”

The deletions she made.

“the tin of money”

“and he also opened the big rolling door and closed it pulling an old money bag with his foot while the door was rolling down.”

“in”

“and that’s it.”

Robert Maxwell Smith has pleaded guilty to the said robbery charge and is now waiting sentence.

At the commencement of the trial Mr. Langford, for the State, gave the following short facts:

“On the 21st December, 1988 an armoured car belonging to PNG Armoured carried money and gold in the direction of Nadzab Airport. Just before the airport turn-off Noki pointed a pistol at the head of the driver, John Kil, who was told to drive straight ahead. Noki told the driver to turn off the highway onto an old war aerodrome. The driver obeyed and drove some distance and then stopped.

An Avis hire car driven by Smith pulled up. Noki opened the rear door of the armoured car (the money hatch) and Smith took the money out (contained in two patrol boxes). Smith cut the padlocks with a bolt-cutter and he and Noki put the money and gold into the car and drove away. The stealing included threats of violence.

Langer was the manager of PNG Armoured and it was their van that was held up. Prior to the van leaving for Nadzab, Langer went into the loading bay at the premises where the armoured car was parked and opened the outer rolling door to the bay and let Noki in. Noki, who had previously been dropped at the premises by Smith, the n n theured card car.

Second Count:

Smith had an Information laid against him. Police asked a secretary by the name of Lagona Kasup to write out a statement to be used in the committal proceedings of Smith. On the 29th December, 1988 she sat at her desk at PNG Armoured writing out her statement. Langer wrote words on that statement and deleted some of the words she had written as indicated in the indictment.

The State says that it was an attempt to induce Lagona Kasup to give false testimony.

The words that were deleted were going to be her evidence. The words included were not going to be her evidence.”

1. &##160;; < < PETER MANI .

Hi

His defence is that the person who identified him in the armoured car and some days later at an identification parade was ken. is, ance of mistakentity.

In John Beng Beng v. Thv. The Stae State 1977 P.N.G.L.R. 115 at p 122, Prentice D.C.J. and Williams J. said the following:

“It has long been recognized that there are dangers inherent in eye witness identification evidence. The Court was referred to ............ Raymond Turnbull & Ors (1976) 63 Cr. App. R. 132. In that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the headnote to the report) were made:

“Wherever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made ........

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor - i.e. a fleeting glance or a longer observation made in difficult conditions - the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence of circumstances which the jury might think was supporting when it did not have this quality, the judge should say so .....”

Prentice DCJ and Williams J. at p 123 then said:

“The matter cannot be put higher .......... than in accordance with the principles as expounded in Turnbull.”

The law on this point is therefore quite clear in Papua New Guinea and there is no doubt that it is a severe test. I would have thought for obvious reasons.

The identifying State witness was Thomas Gibson. He was one of the crew on the armoured car - Alfa 4 - and was situated in the part of the car that is petitioned off from the driver. Needless to say there is glass forming part of the petition and Gibson stated that he had a clear view through the glass to where the hold up man was situated behind the driver John Kil. The main obstacle to the observation was that the hold up man (alleged to be Noki) was wearing a mask. That is he had a plastic shopping type bag over his head which had holes cut out of it for the eyes.

The holes were about 21/2” to 3” wide. Gibson said that from the time he was aware of the hold up near the Nadzab entrance, to the time the armoured car stopped at the old aerodrome, he had the hold up man under observation. He said he carried out a conversation with the hold up man for most of the time the armoured car was moving. That would be for about ten to fifteen minutes.

Even though I accept that Gibson saw the holes were about 21/2” to 3” wide and that he was observing the hold up man, I am of the view that he did not talk with the hold up man to the extent stated. The two others in the armoured car did not support him, although it seems there was some briefer conversation. It would be unlikely, under the circumstances, that the gunman would engage in such a constant conversation with one of the crew on the other side of the glass.

Gibson I am satisfied was about 18” from the gunman and he could see that the man had short hair, a sharp nose and a beard. Even though it was not clear in the evidence, it seems that the plastic bag was semi-transparent.

It is obvious that Gibson did not have a clear view of the gunman’s face and to a certain extent the view was quite limited. I have no doubt that he saw some particular features, but of course those features could be applicable to a multitude of people. He was of the view that the man’s pidgin sounded as if he was from Mt. Hagen so that also was on Gibson’s mind.

It must also be remembered that the view through the glass is not perfect and that the circumstances were most unusual. It may well be a situation where it was “a longer observation made in difficult conditions.” (see John Beng -v- The State (supra)). Of course the observation was fairly long but was restricted. There was no evidence as to the state of the light in the armoured car but apparently it was a clear day and after viewing the vehicle I can assume that it would have been reasonably light where the gunman was situated.

Several days later Gibson attended an identification parade at the Lae Central police station. I say from the outset that I was not impressed with the quality of the parade. I say that because even though Noki may have had the features that Gibson observed in the armoured car it really could not be said for the other eleven. I tend to agree with Mr. Inkisopo (for Noki) that Noki “shone out clearly.” A photograph of the line-up was tendered and only three men had beards. A line-up should be made up of people similar in appearance. That is, similar in appearance to the accused. It should not be made easy for the identifier as that is not only unfair to the accused but it could create an enormous miscarriage of justice. To my mind the people in the line-up were not similar to the accused or each other. The make-up of the parade was poor. I am supported in that view by the fact that Gibson stated that he recognized Noki from afar even before he commenced the official identification. That concerned me because if there had been twelve people of similar appearance then I am sure Gibson would have had to take a much closer look before making a decision. As it was there was really only one and Gibson touched him on the shoulder. One wonders if he would have been so sure if the others appeared similar to Noki. I have grave doubts because the quality of the observation in the armoured car was poor.

Even though Noki said in his unsworn statement that the police pointed him out to Gibson as the suspect at the police station on the 21st December, 1988, I can take little notice of it. It was not put to the police witnesses or to Gibson in cross-examination and therefore it must lose all its weight.

Needless to say the whole identifying process from the armoured car to the identification parade leaves me quite uncomfortable. I must reject it and turn to the other evidence relating to Noki.

It seems agreed that the remaining evidence is circumstantial and therefore I must go to the law on circumstantial evidence.

In the Supreme Court decision of Paulus Pawa v. The State 1981 P.N.G.L.R. 498 at p 501 Andrew J. said:

“I am in agreement with Miles J. in The State v. Tom Morris [1981] P.N.G.L.R. 493 at p 495 when he said:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; (1975) 50 A.L.J.R. 108 at p 117:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R. 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at p 252; see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R. 584 at pp 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v. The Queen at p 661. These principles are well settled in Australia.”

From that decision of our Supreme Court it seems that the principles are also well settled in Papua New Guinea.

Noki worked for Boinamo Enterprises, the same organization as Smith. Smith in fact was his immediate boss. He said on the morning of the 21st December, he was taken to his work place by Smith in the Boinamo bus. There is no dispute that the night before, Smith left a Mazda 626 at Noki’s home. It is also not in dispute that that was the car that Smith used to follow the armoured car and take part in the hold-up on the 21st December. When Noki left for work the Mazda was still at his home. Smith said in his evidence that he left the car at Noki’s residence because there was no space at his house. It seems that Smith and Noki lived in close proximity to each other. Noki went on to say that he was left at his work place by Smith and then sometime later he was shifted to another work site by Smith. Smith left and told him he’d pick him up later. On the evidence it is clear that Noki was picked up by Smith in the Boinamo bus at about 9.00 to 9.30 a.m. The State suggests that Noki was not taken to another work site but in fact was taken to PNG Armoured to be hidden in the armoured car to go to Nadzab. Noki denies that. The State called a witness to say that she saw a black person in the back of the Boinamo bus going into PNG Armoured on the morning of the 21st December. She had a fleeting glance and could not identify him further. She only saw him from the back when he briefly put his head up into view. There was no evidence identifying him as Noki.

Noki said that later he was collected by Smith around about lunch time in the Mazda 626 and taken to his home in the bus. He (Smith) told him he would pick him up later.

The State of course says that it was Noki in the armoured car and it was he who left in the Mazda 626 from the scene. There is no evidence of that. The State also says that it was Noki seen soon after in the same car with Smith at Three Mile. Certainly a black person was seen with Smith in the car at that time but there is no evidence that it was Noki.

Therefore it might be asked, why not believe Noki? His story is quite possible. He was only doing what he was told by his boss. The fact that his boss wanted the car washed in the middle of the day was not Noki’s concern. There was no evidence about it anyway. The fact that Noki was washing the car used in the hold-up does not prove that he was involved in the hold-up. There is no evidence to suggest that Noki wasn’t dropped off by Smith at the second work site. There is certainly no evidence that Noki was found with any of the stolen money or gold, the pistols used in the robbery or the mask and clothes worn by the gunmen.

The evidence relating to Noki is clearly circumstantial. Circumstantial evidence is a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. Evidence which although not directly establishing the existence of the facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or relation to them.

During Mr. Inkisipo’s address I referred to Mr. Noki making an unsworn statement rather than giving sworn evidence. I must make it clear that in our legal system that course is permissible and it should not be held against him. Of course he didn’t have to say anything at all. It is for the State to prove its case beyond reasonable doubt.

Also in his record of interview of the 23rd December, 1988 it might be suggested that Noki was less than cooperative in answering some of the questions relating to Smith, but again that should not be held against him. Our law is clear that he does not have to answer any questions if he does not wish to. In question 2 of the said record of interview, it goes as follows:

“Q.2. I am warnou not that, you you can remain silent if you wish to. But anything you wish to say will be recorded down and later used in Court. Do you understand?” He answered: “Yes.”

It therefore would be quite unusual to hold it against him for failing to answer questions.

Another point that needs consideration is that in his said record of interview Noki said that he became aware of the Mazda being at his house at about midnight on the 20th December. But the haus boi said that he (the haus boi) had been out and saw the car outside when he returned home. I have a gut feeling that that was well before midnight but there was no evidence to indicate at what time the haus boi returned to the house. I don’t know where he went, possibly he did return home after midnight. He certainly had a conversation with Noki about the car. It was not denied by Noki in his statement. Probably in Noki’s favour was that he did not deny knowledge of the car and went so far as to say that it belonged to his boss. Presumably Smith. There is no evidence to suggest that Noki knew that it was an Avis rent-a-car.

Therefore I am really left with the evidence that the get-away car was left outside Noki’s house the night before the robbery. Noki knew it was there but there is no evidence to suggest that he knew it was for a robbery. He was picked up to go to work, with others, by Smith the next day in the Boinamo bus. At about 9.00 to 9.30 a.m. Smith took him to a second work site. Around lunchtime or soon after Smith collected him and took him to Noki’s house and told him to wash the car. Sometime later the police arrived at Noki’s house and found him with the said get-away car. I have already set out the State’s allegation of what it said happened.

Therefore are the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused? Is the inference of guilt the only inference open to reasonable men upon a consideration of all the facts in evidence? Are there a series of circumstances leading to the inference or conclusion of guilt?

To my mind it is clear that on the evidence I could not make such an inference or conclusion. I must give him the benefit of the doubt. I find Peter Noki Manda “Not Guilty”.

I now turn to William Henry Langer.

The evidence against Langer is also circumstantial. Mr. Langer has vigorously maintained his innocence from the very beginning and there is no evidence even hinting of an admission by him.

At the end of the trial the State handed to me a sheet of paper headed “Evidence Implicating Langer.” Nineteen points were listed. I now propose to look at those points in detail and then eventually decide if an inference or conclusion of guilt could be reached or whether it would be too dangerous to convict on both or any of the changes against him.

1. &##160;; < < Langer knew .ThereThere is no doubt from the evidence that Smith and Langer had built up a moderately strong friendship. Both had an interest in golddlessay itd seem from the evidence relating to Smith that hhat he in e in fact fact cultivated the friendship because he wished to find out the workings of PNG Armoured. He said he didn’t find out a lot from Langer. Langer said the friendship developed because he (Langer) even though he was a married man, was living alone in Lae and he said that Lae “was a lonely place.” It seems that Smith visited PNG Armoured fairly regularly between August and December, 1988 for business reasons and social reasons. I am also satisfied that at various times they socialised together outside business hours and visited each others homes on several occasions. There was no evidence as to Smith’s marital state but I assume that he is single. It could well be argued that their relationship was a normal one and certainly no different to what one would expect of expatriate single middle-aged men living in Lae. That is, attending Clubs, Hotels and restaurants together and with other friends. There is no suggestion that Langer was aware of Smith’s ulterior motive or that this friendship was struck up to organize a robbery. They had known each other for about four months prior to the robbery.

Naturally, because they knew each other, does not mean necessarily that they were both involved in the robbery. Smith certainly was, he’s pleaded guilty to the charge. The State is saying that it’s part of the circumstantial evidence pointing to guilt. It could be said that because of their friendship the possibility of a conspiracy to rob was there.

But I think also that at this stage I should look at Langer himself. There is no doubt that he presents well in dress, manners and etiquette. I say that from my observations in Court. He is well spoken and defended himself quite efficiently. I gather from the evidence that before the 21st December, 1988 Langer had no criminal record. That is what he had the Court believe and the State did not challenge it. At the time of the alleged offences he was fifty-four years of age. He had been in the Security business for many many years and he intimated to me that if he was inclined to crime he would have had many opportunities in the past. But he was not a criminal, he said, and at the age of fifty-four employed in a business where money was readily accessible he had no prior convictions. He is saying that it is not likely that, at his age, he would commence a life of crime. A similar submission was once made in the Victorian Supreme Court in a case which I now cannot remember the name. The Court with all respect, went to the extreme and said that such a person would be unable to commit a crime. I would not agree with that decision because I would have thought, under the right circumstances, many people could commit a crime no matter what their age or history was. But what I am prepared to say is that someone such as Mr. Langer is not likely to commence a criminal career at the age of fifty-four years. His age and work type history must weigh in his favour when determining his guilt or innocence.

I should also ask myself whether a man with Langer’s experience in security would participate in a robbery where the get away car was being driven by a man who had hired the car from Avis in his real name. To even make things more bizarre there was no effort made to change or conceal the number plates. Anyone in their right mind would have known that quick detection was inevitable. After all they were robbing an armoured car and Security firm employees would be likely to look for such things as number plates. To a certain extent I see the whole episode as rather amateurish and in a sense a form of certain “suicide.” Would Langer be a part of this comedy? Obviously I cannot say ‘yes’ or ‘no’ to that but I think I can say that it is unlikely that he would participate in such an exercise keeping in mind his years of experience in security. It was doomed from the time that Smith signed the Avis Rental Agreement. I should have said that Smith also put his employer’s name, BOINAMO, on the rental agreement. I gather that was to ensure that everyone knew exactly who he was and where he worked!

2. ;ɘʔ Langer was vias visited by Smith on the night before the roberry.

I agree that that creates a certain amount of suspicion. It seems also that he was in the get away car onnightth co#8217;t remember mber visitvisiting Ling Langer but interestingly enough it was Langer who gave the information that Smith visited him. One might ask: “If Langer is guilty why would he voluntarily admit that Smith visited him the night before the robbery? He did not have to give that information because no one would have been any the wiser.”

It is also clear from the evidence that Langer could not see the make or model of the car from the balcony of his home but he could see the car was “black looking.” There is no evidence that Smith told him anything about the car and the short discussion about it was only commenced because Langer raised it.

Obviously it seems suspicious that Smith would visit Langer the night before the robbery in the future get away car but I also ask myself about Langer’s voluntary information regarding the visit. Is it consistent with the actions of a guilty man? I am of the view that the point score would have to be more on the side of Langer than against.

3. ـ &##60;& S60; Smith visited ited PNG Armoured on the morning of the robbery.

Again an unusual happening unless of course Langer was involved in the robbery. But would he visit anyway if Langer was not involved in the robbery? It is possible. Smith himself said in his letter of the 20th February, 1989 to Mrs. Langer that he went to PNG Armoured on that morning for two reasons. One of those reasons was to “check out the Chevy”: i.e. Alfa 4 or A.4. The other was to give Langer some drawings (or photos it seems) of gold dredges. I am satisfied that Smith had planned to rob the Alfa 4 that day and it is therefore arguable that he was using the photos as an excuse to visit Langer, all the time intending to “check out the Chevy.” Langer would not be suspicious of him as they were friends and Smith had visited before. But it seems from the evidence that in the past he had a reason for visiting so on this occasion he concocted a reason. These are all possibilities which to a certain extent can weaken the State case relating to the compilation of circumstantial evidence. By not seeing the Alfa 4 in the PNG Armoured yard Smith would have a fair idea that it was out on the road.

Yari Lee said that she saw a black man in the back of the Boinamo bus on the morning of the 21st December as it entered PNG Armoured. She said she heard the driver (there is no dispute that it was Smith) say “sit back”. She said the man put his head up and then went out of sight again. On the face of it that is very damaging evidence because Smith and Langer said there was no one else in the bus at the time. If accepted then it would appear that the person in the back was the one who was to eventually hide in the armoured car. It does not necessarily mean that Langer hid him in the car because if he is believed then it is possible that Langer didn’t see him at the time he spoke to Smith. Remembering that Smith was out of the bus at the time. It could be said that Smith was delivering the man to the premises, without Langer knowing about it.

But I must look more closely at Yari Lee’s evidence. Smith in his said letter of the 20th February, 1989 said he used the words “stand back” not “sit back” because Yari Lee was close to the bus at the time. The Prosecutor implied that Smith said this only after he was aware of what Yari Lee would say in Court. That is, he was trying to cover that situation. Possibly that is true because as I will comment on later, I found Smith to be an utterly dishonest and unreliable witness. He was not a witness of truth.

On the other hand Yari Lee may have been mistaken as to what Smith said. I say that because from the evidence it is clear that she does not understand English. Although in her evidence she said that’s what Smith said, it is also clear that he was not talking in Pidgin. Did she make some sort of mistake? If she can’t understand English then it is quite possible that she did get confused with “sit back” and “stand back” or words to that effect. Yari Lee’s evidence indicated that she was indeed close to the bus at the time. Her Evidence on those words used by Smith could not be considered to be reliable by any stretch of the imagination. Afterwards after hearing about the robbery and remembering back to the bus and thinking that Smith said “sit back” she may have concocted in her mind that she saw someone in the back. It is reasonable to infer, that before telling her story of what happened on that day, someone told her that the gunman could have hid in the armoured car whilst it was still at the PNG Armoured premises. As all lawyers know people at times imagine some things happened when in fact they did not. There can be a multitude of reasons for this and one of them could be as set out above. I am therefore a little uncertain of Yari Lee’s evidence. On the other hand of course Smith may well be telling a pack of lies, or was this one time when he might have been telling the truth. It would almost be impossible to say.

4. ҈ < Latger d rne lights out inut in the loading bay.

The evidence indicates that Langer turned the lights out in the ng bathe mg of 1st Der. Tplicationation being that it would therefore be dare dark andk and he c he could ould smuggsmuggle the person onto the armoured car without being seen and that as it was dark it would be difficult to see the person inside the car. On the face of it that is a reasonable assumption. But I cannot ignore the explanation given by Mr. Langer. It is supported by some of the State witnesses. That is, that the aerial on Alfa 4 was higher than the other cars and when it came into the loading bay it hit the roof. Sometime before the 21st December the aerial had hit the light brackets and damage occurred. I am satisfied that some drivers had complained about the dangers of driving Alfa 4 into the loading bay. In fact the lights have now been relocated to avoid any further problems. That is not in dispute. There is some dispute as to whether Alfa 4 was the only armoured car to use the loading bay that day. There was a suggestion that Alfa 2 also used the loading bay. Needless to say if Alfa 2 did use the loading bay it was first thing in the morning of the 21st December and for the rest of the time it was being used by Alfa 4.

Mr. Langer was in charge of the loading bay that day and it could be argued that it was not unreasonable for him to be concerned about the lights. After all he was the Manager. Therefore ultimate responsibility for things rested on his shoulders. The evidence is that the light bracket was broken by Alfa 4 only a few weeks prior to the 21st December and efforts had been made to have an electrical contractor come around to relocate the lights. As we all know it sometimes takes such people a long time to attend. The general view of the employees who gave evidence was that they had not seen the loading bay lights off before that day. But as far as I can gather Langer was not the usual person to sit in the Supervisor’s office and control the loading bay. The evidence did not indicate when he was last in that position. Boge Reva held the position and it seems, at times, Thomas Gibson would control the Supervisors office. Langer was the Manager and I can infer that he would not be in the Supervisors position very often. In the time that Boge Reva was in the position he seemed to keep the lights on. Mr Langer obviously thought the lights should be off in case there was another accident. I think it is reasonable to infer that this was his first time in the Supervisor’s job since the light and bracket was broken. His approach was different to that of Boge Reva and Thomas Gibson regarding the lights. It does not necessarily mean that he turned off the lights to assist in the robbery. It could be argued that if he was guilty of that then there was no need to turn off the lights until the person climbed into the armoured car. Prior to that they could have stayed on. But they were off all morning and on my reckoning, if the person did climb into the armoured car in the loading bay, it would not have been until about 10.45 to 11.00 a.m.. Therefore the question could be asked, “why have the lights off until then”? Unless of course Langer is telling the truth that he was afraid the Alfa 4 aerial would damage them. Obviously if the lights were on when the aerial hit, it would be more dangerous than if the lights were off.

Finally on this point I note that none of the crews complained about the loading bay lights being off and that indicates to me that it was not too difficult to see. Particularly when the loading bay outer roller door was open. When it was shut I gather light from the Supervisors office shone through the inner rolling door.

I have no doubt that if it had been impossible to work with the loading bay lights off then someone would have said so very quickly. In short it was a workable situation.

5. &##160;; < < Langer turneecu sty cameraamera on hold.

By turning the security camera on hold the T.reen e supervisor’s office only showed the front gate and driveway. The second pond picturicture normally showed the outer rolling door of the loading bay. The allegation by the State is that by doing this, Langer could let someone in through the outer rolling door into the loading bay and not be seen on the T.V. screen in the Supervisor’s office. Hence the reason for holding the camera on the view of the front gate. Once again that is a reasonable submission on its own but Langer also has a reasonable explanation for it. He stated that he placed it on hold because the other picture was smudgy in the earlier part of the morning because the camera outside was positioned incorrectly. There was State evidence to support that explanation and on the 21st December, 1988 the fault was still occurring. Also the screen flickered and effected some operators when it turned from one picture to the other. An example of that was Boge Reva who had to get special glasses. In fact he denied it but later on Mr. Hahn, the PNG Armoured General Manager (a State witness) confirmed that in fact the Company did provide for Boge Reva’s spectacles due to his problems with the T.V. screen. I accept Mr. Hahn’s evidence and of course that places a question mark next to Boge Reva’s evidence. Clearly he told an untruth on oath.

Evidence was also produced that the screen should not be put on hold unless for a very good reason. The fact that the flicker irritated the operator was not a good reason. Clearly the screen on hold hampered security. In effect it was against the rules. But I should say at this time that the rules were breached regularly at PNG Armoured and it was not just on that day. That day was no different. During the course of the lengthy trial we heard about armoured cars going to Nadzab without the required escort car behind, about armoured cars going about Lae without the required number of crew on board. Sometimes it seems that only the driver was in the armoured car when there should have been two crew also. We heard that sometimes the crew would leave the cars unattended and that the radio in Alfa 4 was not in good working condition. We heard that large sums of money were sometimes carried in ordinary vehicles if an armoured car was not available. The clients were not aware of this. There were others.

So the fact that Langer turned the screen onto hold on that day, when looked at in the context of all other breaches of regulations, does not seem all that important. Lagona Kasup had not done the particular job before and it could be said that the flicker could irritate her. The smudge was on the other picture anyway and it was useless. Langer said the smudge cleared at about 9.30 a.m. so the question was asked as to why he did not take it off hold then. He answered that he forgot. It must be remembered that on that morning Langer was not at the screen all the time, he was in his office working. At one time he also had a visitor, Mike Deere who stayed for about half an hour. According to Langer it would seem that Mike Deere was there talking to Langer at the time the screen could have been turned off hold. This may have distracted him. Again it could be argued that Langer need only have put the camera on hold when Smith arrived if he had a guilty intent. Lagona Kasup would have been none the wiser. She was new to the position. He could have made up any excuse for it. Also why have the screen on hold prior to Smith arriving? There was no need for it. Unless of course Langer is believed and he saw no use in looking at a smudge and that the flicker was irritating. Why be irritated by a flicker just to look at a smudge?

6. &##160;; < < Langer sent n tsoPhillips.lips.

7. &ـ < < Lanent Jil t Gieson.

The new Armoured car was at Phillips Electrical having aing a radi radio fitted. When the Alfa 4 returned from its first ruthe Bf Soucific and Robert Laurie (for weighing), Langer seer sent Thnt Thomas omas Gibson down to Phillips to collect the new car. Phillips had rung to say that it was ready. I accept the evidence that Gibson bought the car back to the depot but when it was discovered that the radio was not right he took it back. On my estimation, it was about 10.45 a.m. when Alfa 4 came back from its second run and Langer sent John Kil to collect Gibson at Phillips Electrical because the radio was still not ready.

Quite frankly I really can’t see how that evidence implicates Langer. As far as I can see it was not planned that the radio would be fitted over a certain time or that the radio would need to go back a second time to be repaired. For all intents and purposes it seems to me that Gibson should have been back with the new car at about 10.00 a.m. and there he would have stayed until they left for Nadzab at about 11.00 a.m. or soon after. In that event John Kil would also have been there at the time when the unknown person was alleged to have climbed into Alfa 4. Someone had to go to Phillips to get the new car and it seems to me that Thomas Gibson was the obvious choice. Lagona could not do it and Langer needed to stay and supervise her and look after the depot. John Kil and Reva Doura went out on the second run, even though the vehicle was undermanned and there again the regulations were being breached.

I see nothing unusual in all this and I can’t see how it implicates Langer.

Various times were stated during the course of this trial and I am of the view that neither the State or the defence got them right. On my perusal of the evidence I make the following findings:-

Mike Deere arrived at PNG Armoured between 8.30 to 9.00 a.m. Smith arrived at about 9.00 to 9.15 a.m. Just after 9.15 to 9.30 a.m. Gibson, John Kil and Reva Doura arrived back from the first run. Soon after that Mike Deere drove Thomas Gibson to Phillips Electrical.

Between 9.30 to 9.45 a.m. Reva and John went on the second run and returned at about 10.45 a.m.

At 10.45 a.m. John Kil went to collect Gibson and they returned at about 11.00 a.m. It is at that time between 10.45 and 11.00 a.m. that it is suggested that the person climbed in at the depot. That is if he hadn’t got in somewhere else.

8. &##60;& L60;er ngnt Deura fura for coffee. & 9. Langer opened loading bay door.

At about 11.45 and shortly before Langer and Lagona heard a noise in the loading bay Langer told oed Reura tand have a coffee. At . At this this time time Lagona was the only other one there as Gibson was at Phillips and John Kil had gone to collect him. The suggestion by the State is that Langer was getting Reva Doura out of the way so as he could let the unknown person into the armoured car. That is not an unreasonable submission but I am of the view that it has some flaws and there are alternative conclusions which are reasonable. What comes to my mind immediately is: Why didn’t Langer send them both off to get coffee or tea or whatever? Then he could have done it all by himself without any witnesses. That is if he had a guilty intent.

On the other hand Reva Doura had been working all morning and shortly was to go on the fairly long trip out to Nadzab. He had just returned from a trip and was waiting for Gibson and Kil to return. I can’t see that under those circumstances it was unusual to invite Reva Doura to have a coffee. It was a coffee break. It may very well have been a thoughtful gesture on Langer’s part. The fact that he didn’t usually tell the male staff to get a coffee, I don’t think is significant. On that day there were only the three in the office at the time and his invitation was what I would have thought to be fairly normal. Unless of course he did it with a guilty intent. If it had all been planned by Langer previously well another question could be asked as to what would have happened if Reva Doura had refused the coffee. To my mind that would not be a safe plan. If he was trying to get him out of the way he could have sent him with John Kil to collect Thomas Gibson and then sent Lagona to get some coffee.

The next part of the State case is important because it is the time when the State suggests that Langer let the person into Alfa 4.

He and Lagona heard a noise coming from the loading bay. Lagona said it was tapping but Langer said that it was a different type of noise. Reva Doura was preparing coffee at the time. Langer went into the loading bay and subsequently said the noise was caused by a wheel rim falling over. He also said that Reva Doura followed him into the loading bay.

Reva Doura denied it and he said that he waited in the Supervisor’s office and did not go into the loading bay. Lagona Kasup also said that Reva Doura stayed outside and the subsequent changing of her written statement by Langer of course led to the second charge against him. Clearly if I accept the evidence of Lagona and Reva Doura then Langer’s credibility is dented.

I say from the start that I must be careful of Reva Doura’s evidence because he showed to the Court that he was not a witness of truth. I say that because he swore on oath in the trial that when he and John Kil went to Robert Lauries on their second run that he stayed inside Alfa 4 while some of the staff from Robert Lauries helped John Kil carry the PNGBC tin to be weighed. He was cross-examined fairly extensively on this point but he persisted that he stayed in Alfa 4. I was then somewhat astounded when the State witness Mr. Hahn, the General Manager of PNG Armoured, said in cross-examination that Reva Doura and John Kil told him the day after the robbery that they in fact carried the PNGBC tin out of Alfa 4 at Robert Lauries and left the rear door unlocked. It is clear that at that time Alfa 4 was not locked and it was unattended. Mr. Hahn took the action of the two men very seriously and considered disciplinary action. The evidence does not indicate whether disciplinary action was actually taken. I am satisfied that Reva Doura told an untruth whilst on oath in relation to a very important part of this trial. It clearly leaves a gap for the defence to say that the unknown person may well have got into Alfa 4 at that time at Robert Lauries. Because of Reva Doura’s lies it tends to make me lose confidence in him and if anything, distrust him. One wonders whether there were any other places that Alfa 4 was left unlocked and unattended that morning. It is yet another incident of rule breaking incurred by the staff of PNG Armoured. The cynic might suggest that Reva Doura purposely said he didn’t go into the loading bay because if he admitted it then his rule breaking at Robert Lauries could be seen as the moment when the unknown person climbed into the armoured car Alfa 4. On Reva Doura’s evidence I am not completely satisfied that he didn’t go into the loading bay that morning of the 21st December, 1988.

That leaves Lagona Kasup. She did not write her statement of events on the 21st December until the 29th December, 1988. Part of her statement indicates to me that she did not remember clearly what happened at that time. That does not really surprise me because I would not expect her to be sitting there noting everything in her mind just in case a robbery occurred and she might have to write a statement sometime later about it. On the second page of her statement where she said: “John came back with Thomas and Bill told Reva to put the tin of money (C26) from Steamships that he was sitting on. Reva took the tin in and put it in the armoured car.” That clearly was wrong as the Steamships tin was taken from the armoured car after the second run as it was not going to Nadzab. Only the PNGBC and the Bank of South Pacific tins were going to Nadzab and then to Moresby. The Steamships tin went into the Supervisor’s office, not the armoured car. That part of her statement indicates to me that she was not sure of what happened on the 21st December and she was incorrectly reconstructing events in her mind. I could not possibly be satisfied that her statement is fully correct, even though she said it was.

Another point that puzzles me is that if Langer was going into the loading bay to let someone in then why would he leave the inner roller door half open. Surely he would fully close it so as no one could see inside. Lagona said that through that half open inner roller door she could see the outer roller door coming down and that she could also see Langer kicking an old money bag. From the Courts visit to PNG Armoured I am of the view that she could not have seen Langer kicking a money bag. She could not see around the armoured car. I would also be surprised if she could see the outer roller door come down. Alfa 4 well and truly would occupy the loading bay from floor to walls to ceiling. I suspect that she was giving an account of events that occurred on some other day when there was no vehicle inside the loading bay. If the outer roller door went up and came down at that time then I would have expected someone to hear the noise. It seems from the evidence that neither Lagona or Reva heard any such noise.

10. ټ L60; Langer directed Alfat4 out of the loading bay.

The implication by the State is that Langer did this because he did not want the occupants to look around when reversing and possibly see the unknowson i.

n the othe other ther hand hand Langer said he did it because of the armoured cars aerial hitting the light and bracket. He was directing them out so that would not happen. I can only repeat what I’ve already said about the lights. The fact that the men had not been directed out before does not surprise me because I doubt whether Langer had been in that position since the light and bracket smashed. It was his way of doing things if he was to be believed.

11. ټ T60; There was no escort lehicle.

12. ;ټ Three mree man cren crew.

13. & Langld Al waatadzp>.Th

The State suggesuggests that Langer did not send an escorescort veht vehicle icle because it would impede the robbery and Alfa 4 was pely uanned threw insof four. It was alss also sugo suggestegested thad that Alft Alfa 101 could have returned to Lae as an escort vehicle but Langer made it wait at Nadzab so it would not interfere with his plans.

Firstly in relation to Alfa 101. It had gone to Gusap early on the morning of the 21st December. The evidence was not particularly clear as to when Alfa 101. was told by Langer to wait at Nadzab. The evidence in relation to when Alfa 101 arrived at Nadzab differed considerably and I still don’t know what time it arrived. One of the crew said they could have made it back to Lae while the evidence of another indicated to me that they could not have got back in time. I am still confused and it would be most improper of me to guess the correct time. Certainly from one part of the evidence it was best for Alfa 101 to wait at Nadzab. I found that part of the evidence so unsatisfactory that it would be rather difficult to select a part of it and say that it implicated Langer. It could be equally argued that a part could be selected that did not implicate Langer.

The only escort vehicle available was Alfa 101. It was not there so Alfa 4 went alone. It seems from some of the evidence that that was not the first time it had done so. Some witnesses said there is always an escort. I suspect on past performances of rule breaking that the armoured cars have gone to Nadzab in the past without an escort because the money must get there on time so it can be banked in Moresby before closing time. Certainly there should be an escort but if one is not available then so be it. The mention of getting the police to assist if no escort is available was wishful thinking on the part of Mr. Hahn when he said it. Also there should have been a crew of four rather than three. But I am quite satisfied on the evidence that a crew of three was the norm even though I am also satisfied that there should be a crew of four. The fact that there was no escort vehicle, there was a three man crew and that Alfa 101 was told to wait at Nadzab might implicate Langer at another place in the world at another time in another company but on this occasion it was not new. It did not happen on just that particular day on the 21st December. I am satisfied that such breaches were regular and had been going on for sometime.

14. ҈ L60; Langer did notoactiss loss of radio & 15. Told Alfa 101 to wait at Nadzab after loss of radio contact.

Again it seems that Alfa 4 had a faulty radio and past experience was that sometimes afwentytes ild come come on a on again.gain. Apparently the radio would just go off for no reason. Under normal circumstances loss of radio would mean immediate action but quite frankly when the same thing had happened before and the radio still had not been repaired then it’s simple to see how one could become a little complacent. It’s not as if the 21st December was the first time radio contact was lost with Alfa 4.

Even though Langer was criticized for not following correct procedure on the loss of radio his credibility must strengthen when one looks at what he did when he was advised by Alfa 101 that a hold-up had occurred. Within a short time he gave the particulars to the police and the Mazda 626 was spotted by police at Three Mile. It could be argued that if Langer was involved in the robbery then he would have known that his information would ensure that Smith would be seen on the Nadzab road. He would have known approximately where the robbery occurred and that at that time Smith could not be back in Lae. He must have still been out on the road. His phone call in effect led to Smith’s capture. Also by relaying the registration number he would have known that Smith didn’t have a chance. That does not seem like the actions of a co-conspirator in an armed robbery. He could have delayed any reporting by ten minutes or even longer. He could have used the excuse that he waited and waited to get through to Lae Central Police Station. The evidence indicated that Lae Central is difficult to get through to at times. In fact he tried to ring Lae Central but it was engaged so he quickly went to the nearby Provincial Police Headquarters. There is not much else he could have done. He could have given them the wrong registration number and subsequently say he made a mistake when it was radioed to him. But it seems to me that he acted promptly and correctly.

I am therefore not so impressed with the State’s submission that Langer did not act promptly on the loss of radio contact. It was more a situation of “here we go again.” Then another false alarm. Unfortunately this time it was the case of “the little girl who cried wolf.”

16 ـ &#L60; r nger detailed Lago Lagona to be the operator.

The State submitted that on the day in question Lagona did not need to be the operator as Thomas Gibson was available. Thager sed Labecause she she was iwas inexpenexperienced and would not know what he was up to. Langer explained this by saying that two men did not turn up that day and Gibson was needed. If the two had turned up then Gibson could have been the operator. In cross-examination he said that the two did turn up later and that when he said “didn’t turn up” he meant “didn’t turn up on time.” The State called Arthur Werai in rebuttal who was one of the employees who Langer said turned up late. Werai said that he did not turn up late and in fact worked a full day.

I must say I am a little suspicious of Werai’s evidence in that it is so thorough! He was not asked until the day before he came to Court to make a statement. In effect he did not know until the day before, that he would be needed to go to Court i.e. the 12th October 1989. Yet the witness had an almost perfect memory of what he did on that day and all the places he visited in Alfa 2. It was almost ten months after the event. I can infer that since December last year the witness would have made hundreds of deliveries and collections and the fact that ten months later he could refer back to that day and be so explicit about it astounds me. I can only assume that he was prompted when writing his statement and I am convinced that he reconstructed it without actually remembering where he went on that day. To that extent I found him to be an unconvincing witness.

The fact that Langer kept Lagona as operator after the men turned up does not surprise me. Alfa 2 was behind time and Gibson was needed to do what he was doing. If the men had turned up on time then it seems that Gibson could have been the operator.

Under the circumstances I do not believe that points 17, 18 and 19 need examining.

Mr. Langer called Smith as a witness and in particular to say that he (Langer) was not involved in the robbery. Smith did not help Langer as I found Smith not to be a witness of truth. He clearly was protecting his accomplices and was prepared to say anything to do so. It is not necessary to go into it now except to say that I found his letter of the 20th February, 1989 to be full of untruths. His evidence in Court was the same.

Therefore again I must ask myself, does the circumstantial evidence against Langer lead to the inference or conclusion of guilt? Are the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused? Is the inference of guilt the only inference open to reasonable men upon a consideration of all the facts in evidence?

It is clear to me that the inference of guilt is not the only inference open and I therefore find William Henry Langer “Not Guilty” on two counts as charged.

Verdict of Not Guilty.

Lawyer for the State: Public Prosecutor

Lawyer for the First Accused: Public Solicitor

The Second Accused appeared for himself.