State v Gaidi [2002] PGNC 80; N2256 (1 August 2002)

N2256

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 247 of 2001

THE STATE

-V-

MARETY AME GAIDI

WAIGANI: KANDAKASI, J.
2002: 16th and 17th July
1st August

DECISION ON VERDICT

CRIMINAL LAW - Armed robbery – Identification only issue for trial – Eye witness talking face to face with accused taking about 3 minutes - Broad day light – Accused not masked –No reason to falsely testify against accused – No real challenge on witnesses ability to identify – Identification of accused at police station on sight of accused as the person he saw at scene of robbery – Circumstantial evidence including vehicle used during robbery support accused involvement in the robbery – Need to warn of the apparent dangers of purported identification - Court satisfied that the accused was positively identified as person involved in the robbery – Guilty verdict returned - Criminal Code ss.386.

Cases cited:

John Beng v. The State [1977] PNGLR 115.
The State v. Raphael Kimba Aki (unreported judgement delivered on 26/01/01) N2039.
John Jaminan v. The State (No.2) [1983] PNGLR 318.

Counsel

Mr. M. Boni for the State
Mr. B. Takin for the Accused

1st August, 2002

KANDAKASI J: You pleaded no guilty to one charge of armed gang robbery on the 3rd of August 2000, at East Boroko, National Capital District where cash and goods totalling K9,600.00 was stolen. This necessitated a trial, mainly on the issued of identification as the other important aspects of the charge were not in issue.

In a bid to establish the charge against you, the State called 4 witnesses namely, Alex Theo, Baia Abubu, Sioni Papi and Milton Kelemandi. It also had admitted into evidence the following documents with your consent:

1. Statement of Ngu Kei Dung dated 11th of September 2000 – Exhibit "A";
2. Statement of Milton Kelemandi undated – Exhibit "B"; and
3. Statement of Dominic Sumala dated 3 August 2000 – Exhibit "C"
   

Undisputed facts and findings of fact

From these witnesses and the statements, the undisputed facts, which I so find as facts are these. On the 3rd of August 2000, between 10:00am and 11:00am an armed gang robbery took place at Section 6, Allotment 7, Bisini Parade, East Boroko, National Capital District. Four men, two in police uniform and two in civilian cloths drove up to the gate of a house with a company office downstairs at the above place. One of the two in civilian was the driver of the vehicle described as a Toyota Hilux, Surf, white in colour and bearing registration number BBD 519. The driver stopped the vehicle at gate. Witness Abaia Abubu, who was then employed as a security, asked the driver, what were they looking for. Then the person sitting in the crew seat, who was in police uniform, said they were looking for Alex Theo. So the witness told them, Alex Theo was there and he opened the gate for them to drive in thinking, they were Alex Theo’s friends or had something to do with him. This took about three minutes. During this time, the witness was facing and talking to the driver who had no cap or mask over his face. The distance between the witness and the driver was about 1.5 meters.

Once the gang was inside, the vehicle was parked and the two men in police uniform with the other man in civilian went into the office. The driver waited in the vehicle. From the Abaia Abubu’s position, the vehicle was parked in a way that gave him a side view of the driver. He was therefore, able to see the drive in that view during the time the vehicle was there. Alex Theo estimated that the robbery took about 10 minutes so Mr. Abubu observed the driver for a total of about 13 minutes.

As soon as the gang entered the office where Alex Theo and Ngu Kei Dung ("victims") were, they were taken to be policemen. Ngu Kei Dung thought the policemen wanted to talked to Alex Theo as they were asking for him as they entered, so he tried to excuse himself. He was however, asked to remain. Then one of the men in police uniform produced a gun and said it was a hold up and ordered Alex Theo to open all the draws in the office. The gang took from the victims, cash and goods including a laptop computer (notebook). The total of cash and value of goods stolen was about K9,600.00.

The gang tied both of the victims, hands and legs and put them on the floor, before getting out of the office and driving out as if nothing had happened. They said thank you to the security, Mr. Abubu and left.

The victims did not put up any resistance or called for any help in fear of their lives because a gun was pointed at them. They therefore, merely complied with the orders that were given by the gang. However, as soon as the gang was out of the gate, Alex Theo shouted for help indicating that a robbery had just taken place. Mr. Theo called Mr. Abubu to confirm the identity of the vehicle and he did. Police were then notified.

Upon receipt of report, police tactical and other units were notified of the robbery and were instructed to keep a lookout for the vehicle used in the robbery. At about 2:30pm., a police tactical response unit vehicle sighted the vehicle at Konedobu and started to tail it and stopped it near the Central Provincial Headquarters. Police took from you the vehicle you were driving and took you out of the vehicle and put you into their vehicle after searching you. A policeman drove the vehicle you had driven into the Boroko Police Station.

You were searched again at the police station. That search resulted in a K20.00 being recovered from your shirt pocket, K450.00 from your back right pocket of a red jaw jeans and K700.00 from your underwear. You were then formally arrested and charged with armed robbery.

Disputed facts

You deny being the driver of the vehicle at the time and during the robbery and therefore being a part of the robbery. You say an Otis who was working on the vehicle gave it to you to work on it as well in your capacity as a mechanic. Its owner is an Aisa. Without specifying what the problem was, you had it fixed and was giving a test drive to Konedobu to pick up a copy of your grade ten certificate after loosing your original copy.

Also, you claim that the money found on you was part of the proceeds of a sale you made of your own motor vehicle. You said you sold you vehicle to a friend for K4,000.00 and he made a part payment of K2,000.00 on the previous Friday. You spent part of it and the balance was with you when you were arrested. You agreed to questions put to you in cross-examination that, it was unsafe to carry such sums of money in the way you had and that, it was also uncomfortable to have about K700.00 in your underwear. You did not however, provide any explanation as to why that was necessary when you could have put it in your house or even at a bank. Your response to such questions was that, it was your money and that, it was up to you to put it where-ever you wanted to.

The State’s second witness, Mr. Abaia Abubu, identified you in Court as the person he saw during or at the time of robbery. He says he spoke to you at the gate as you drove in and saw you out after seeing you in the car park of the property. His contact with you was about three minutes face to face at the gate and a further 10 minutes whilst you were in the vehicle waiting for the others.

There is nothing in evidence to suggest that it was a poor day, or that the witness has bad eyesight or that he has something against you sufficient to come into court and give a false testimony against you. Further, there is neither any evidence nor any suggestion that the witness’ view was obstructed in any way. The evidence is however that, this was a robbery conducted with such calm and ease during broad day light made possible by the presence of two of the gang members in police uniform and neither yourself, nor the other man in civilian being disguised in any way. He reconfirmed is identification of you on the same day of the robbery at the police station unaided by any policeman or any other person wanting this witness to connect you to the robbery.

The Law

The correct principles governing how to treat identification evidence is set out in the Supreme Court judgement in John Beng v. The State [1977] PNGLR 115, at pp. 122 –123. I set out the relevant part of that judgement in my judgement in The State v. Raphael Kimba Aki (unreported judgement delivered on 26/01/01) N2039, at p.6. In summary the principles are these:

1. It has been long recognised that, there are dangers inherent in eye-witness identification evidence;
2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a). a convincing witness may be mistaken; or

(b). a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;
4. There should be a specific direction to closely examine the circumstances in which the identification was made;
5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8. There should be an acquittal if the quality of the evidence is bad.
   

Application of the Law

In line with these principles, I warn myself that Mr. Abaia Abubu may be mistaken in his observation and hence his identification of you. So I need to carefully consider the circumstances in which he says he identified you.

As already noted, the robbery took place during broad daylight. The time estimate is between 10:00am and 11:00am. The witness talked to you face to faced within an estimated distance of 1.5 meters, which was not far. The glasses of the vehicle were not darkly tinted. You were not masked or had a cap or hat or anything like that, that could have made it difficult to tell your face. It was not a fleeting glance. There was a good estimated time of 3 minutes observation for the witness. Added to that is the additional 10 minutes he saw you spent in the vehicle. Then you were seen again at the gate on your way out. His evidence is that you did not rush out. You obviously had to wait for the gate to be opened before you drove out. Not long after that, about three hours later he identified you at the police station as he came in without any leads or assistance from any body.

Further, no suggestion was put to this witness that the day was very poor, say dark and or gloomy and raining, making the witness’ identification of you difficult. Likewise, no suggestion was put to the witness for example that, there were some obstruction or interference in his identification of you. Similarly, nothing was asked about the witness’ eyesight. I take it that these factors were accepted to be operating in favour of the witness. As such, he was not questioned in any way.

Your questions and arguments center around the premise that, you were not identified at the scene of the robbery but at the police station when you were brought in. That obviously overlooked the fact that, this witness positively identified you at the scene of the crime as the driver of the vehicle used in the robbery. Instead of trying to destroy or cast doubts first to that part of the evidence, much of the concentration was the repeat identification of you at the police station based on his statement to the police, which reads:

"At Boroko Police Station, I recognised the Accuse, Marety. Ame. Gaidi as the same person who was the driver of this TOYOTA HILUX SURF, WHITE IN COLOUR, Registration No. BBD 519, that had robbed my boss that morning."

This particular witness’ evidence is so clear. He first identified you at the scene of the crime and when he saw you at the police station, he confirmed having seen you as the driver of the vehicle used in the robbery at the scene of the crime. In fact, that is how his statement to the police reads. Besides I note that, the written statement of the witness was from notes the police arresting officer took. It has to be seen and read in the context of the witness’ oral evidence.

Furthermore other circumstantial evidence produced by the state and not in any serious contest, adds weight to the argument that the witness was not mistaken. An obvious piece of evidence in this regard, is the vehicle used in the robbery. There is no issued that the vehicle you were caught driving was the same vehicle used in the robbery. You claim the vehicle was given to you by a person you only describe as an Otis for some unspecified work without its owner having any part in that. There was no contact between you and its owner for the purposes of you working on his vehicle. You were then found with a total of K1,120.00 on you, with K700.00 of that being hidden in your underwear. You have not produced any evidence of where that money came from and your claim of being a mechanic. Also you failed to provide a satisfactory explanation as to why it was necessary to carry such a sum of money in your underwear, instead of putting it at a bank or at your house, if they were received the previous Friday.

Still further, you did not put your case to the prosecution witness Mr. Milton Kelemandi, who was your arresting and charging officer. He conducted the search and found the money on you. He is also the one that conducted the record of interview with you. If indeed you disclosed where the money came from at that stage, police could have carried the necessary investigations to verify what you claimed. There is no evidence of you having done that.

The law is settled that if a party tells a story in court without first having put that to the other side, that evidence must be treated as recent inventions. As such it should be treated as unreliable: John Jaminan v. The State (N0.2) [1983] PNGLR 318 at p.323.

The Decision

A careful consideration of all of these leads me to only one conclusion. The quality of Mr. Abaia Abubu’s evidence is good. I have no reason to doubt his credibility and truthfulness. I am therefore, satisfied beyond any doubt that he identified you at the scene of the robbery in the vehicle involved as its driver. No conditions existed to cast any doubt as to his identification of you and that being correct. The other circumstantial evidence of you being found with the vehicle used in the robbery and having a large sum of money without any prove of where it came from and a substantial part of that being placed in your under wear, supports the correctness of your identification and involvement.

There being no issue on the other elements of the charge against you, I am satisfied beyond any reasonable doubt that you were part of the gang that robbed Alex Theo, at Section 6, Allotment 7, Bisini Parade, East Boroko, National Capital District, on the 3rd of August 2000. I therefore find you guilty of the charge of armed robbery contrary to section 386(1) and (2) and in association with Section 7 of the Criminal Code. I therefore return a verdict of guilty against you on the charge presented against you by the State, and convict you accordingly.

I order that your bail be revoked and that you be remanded in custody at the Bomana CIS pending your sentence. Your cash bail, if any, shall be refunded on the production of your receipt.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: B. T. Gobu & Associates