State v Raraka [2007] PGNC 13; CR 38 of 2003 (7 May 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 38 OF 2003

STATE

v

HORRIS RARAKA

Kokopo: Lay J.
2007: 17, 18 and 19 April
7 May

CRIMINAL LAW– Criminal Code section 386 - identification - alibi inconsistent with section 96 statement.

Cases Cited

PNG Cases Cited
John Jaminan v The State (No. 2) [1983] PNGLR 318
The State v Titeva Fineko [1978] PNGLR 262

Overseas Cases
Brown v Dunn (1893) 6 R 67 (HL)
Regina v Rodney John Stringer [2000] NSWCCA 293

References
Criminal Code
District Court Act
Criminal Law and Practice of Papua and New Guinea, 3rd edition.

Facts

On the evening of Friday 5 September 2002, or the early hours of the morning of Saturday two men held up the Angco cocoa warehouse at Takubar. One man was armed with a shotgun and the other with a bush knife. The sole State witness, one of the security guards at the premises, identified the accused as the man holding a bush knife and as a person he had known since childhood. The accused and his witnesses gave an alibi that the accused was in a residence some 300 to 400 m away watching television at the time of the robbery.

Held

1. the evidence did not support the attacks made by the defence on the identification evidence;
2. the accused's alibi was inconsistent with his section 96 statement given in the committal proceeding;
3. the other alibi witnesses did not come forward over a period of four years, even when the accused was in custody for over a year, to give evidence of his innocence;
4. the alibi was a recent invention and could not be believed.
   

Counsel
F. Popeu, for the State
P. Kaluwin, for the Accused

DECISION

7 May, 2007

1. LAY J: On 5 September 2002 between 11 p.m. and 12 midnight at the Angco warehouse premises at Takubar, a white utility pulled up in the shadows nearby. Two men - one armed with a shot gun and the other with a bush knife, signalled to the two watching security guards. The guards who were approaching the visitors realised one was armed with a gun and started to move away. The man holding the shot gun discharged it and a pellet hit one of the guards in the arm. The guards retreated into the shadows and they watched as a boy was hoisted over the wall of the warehouse. The main doors were opened. A short time later the utility drove away. It was subsequently found that 11 bags of cocoa had been stolen.

2. After a voir dire a record of interview was not admitted into evidence.

3. The issue in this trial has been whether the accused was one of the two men.

4. The State called only one witness, other than the interviewing officer called on the voir dire, one of the security guards, Michael Roman. He said he has known the accused since they were children. The accused is from Takubar village and Mr. Roman has lived in Takubar since he was a child. The accused used to call Mr. Roman "uncle" and the accused used to come and eat at Mr. Roman's home.

5. On that night Michael Roman was standing in the shadows and the two men, one with a gun, were standing directly under one of the lights attached to the warehouse building, a fluorescent tube. He saw them clearly from 7 or 8 metres away. One was Horris Raraka, the accused, who was holding a bush knife and wearing a red hat. The other was Remi Mission who was holding a pump action shotgun and had a piece of black cloth tied around his forehead.

6. The accused gave alibi evidence which was supported by Martha Konjip and ToPai Eric. Martha Konjip is related to the accused. Their fathers are brothers. ToPai Eric is also related, the accused is his sister's son. All three said that on the night of 5 September 2002 they were all watching television together with a number of other people in a house in the compound that used to belong to PNG Power. The accused did not leave their company at any time during the night. They heard a bell ringing coming from the plantation. It usually meant something was wrong, a theft or a fire. They all went outside and they saw a white utility going towards Papindo. None of them went up to the Angco warehouse.

7. Martha and ToPai told the accused's parents that they could be witnesses that he was with them, but they did not tell the police. Martha did not tell anyone else because they were altogether at the house at the time. ToPai did not tell the police because the police in East New Britain have the reputation for bashing people up. He thought they would be angry with him if he spoke to them about Horris Raraka.

Submissions

8. Counsel for the accused submitted that (1) the sole State witness told police the robbers had nothing on their heads but gave oral evidence that one had a hat and the other a cloth on their heads, (2) the Defence required the other security guard to be produced by the State but he was not produced, (3) there is no corroboration of the alleged shotgun pellet injury, (4) in chief the State witness did not mention the bell being rung; (5) he said he observed the robbers from inside Angco premises and later he said he was at his house; (6) he knows the accused but cannot name his parents, this indicates he is lying (7) he claims he distinctly saw the accused from 7 or 8 m away with an orange light and identified a Red Hat. It is hard to accept he could identify colours. Why did he not identify the gun from that distance. (8) he said he ran and the robbers fired and he was injured, how could he then have seen someone being hoisted over the wall into the warehouse, seen the warehouse doors open while in-flight; how could he have later that night have known that 11 bags of copra was stolen? (9) if the State witness identified the accused that night why did he not take the police to the accused's house? (10) the State witness's evidence is the evidence of one witness which cannot be trusted and is not corroborated; (11) the alibi witnesses had a good demeanour, ToPai could remember his family members that night but not others, he had a genuine reason not to tell the police about the alibi; (12) the accused's District Court Act section 96 statement made on 19 December 2002 confirms that he was at the PNG power Yard with ToPai as he claims in the alibi.; and in reply (12) the person that to the State witness has identified as the accused was wearing a visor cap, light directly above his head would cast a shadow on his face.

9. The State Prosecutor submitted (1) State called no evidence on the first count; (2) the State witness was consistent, his knowledge of the accused was not contested by the accused; (3) matters from the statement of the State witness not called should not be relied upon; (4) there is no contradiction in the State's witness; (5) the record of interview of Mr Roman was not admitted, nothing not put to witness should be considered; (6) Roman made the identification when the accused was standing directly under a light, a fluorescent tube; (7) there is evidence of spotlights being orange light which can be inferred was additional lighting; (8) the evidence of how the shot was fired is quite clear; (9) the witnesses relationship was with the accused, not with the accused's parents, therefore that he could not name the parents was irrelevant; (10) the distance from the house to the Angco warehouse of 300 to 400 m could be walked in 10 minutes and in a car less than five minutes; (11) there were many people at the house and the accused could have been gone without being noticed; (12) the alibi witnesses evidence has to be treated with caution because of their relationship to the accused

The Law

10. On the question of identification relevant matters are (a) the impression left by the eyewitness as to his or her reliability and accuracy, (b) the existence of a motive for giving false evidence as to the identity of the offender, (c) the circumstances in which the person to be identified has been observed, (d) the circumstances in which the identification witness finds himself or herself when making the observation, (e) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness, (f) the existence or otherwise of other evidence direct or circumstantial, of facts or circumstances independently proved: See Criminal Law and Practice of Papua and New Guinea, 3rd edition page 638.

11. An alibi puts the whole of the State case in issue. If the alibi is made out the accused is not guilty. If the alibi is not made out the State case is not affected by the alibi evidence. In relation to a late alibi in the case of John Jaminan v The State (No. 2) [1983] PNGLR 318 at 332-333 Bredmeyer J. said:

"Secondly, the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight."

12. Addressing defence counsel's submissions seriatim counsel first submitted that Mr Roman's evidence about the headgear worn by the two robbers contradicted his statement to the police. Mr Roman’s statement to the police was not put to him nor put into evidence and there is no evidence to support the submission.

13. As to the submission that the State did not produce a witness required by the defence, the defence could have made an application to adjourn until the witness was produced, but chose to go on. Having made that choice there is nothing the Court can do to assist the accused unless an application is made under section 102 of the District Court Act for admission of the statement of the absent witness, and the preconditions for admission are demonstrated.

14. On the point that there is no corroboration of the shotgun pellet injury Mr Roman claims to have received, I agree that there is none apart from the small scar on Mr Roman's arm. However, as a matter of law no corroboration is required.

15. It is true that in chief Mr Roman did not mention that the bell was rung. In cross-examination it appeared he assumed that his colleague had rung the bell, but he did not know affirmatively who rang it. It was not put to him that he did not hear the bell, or that he was not there at all. It is not seem to me that there is any significance in not mentioning the ringing of the Bell. The ringing of the bell was significant to others who heard it because they did not know anything was up when they heard it. But to the witness who was in the middle of the robbery in progress the bell was just signalling the obvious. I do not find that not mentioning the bell influences drawing an inference one way or another.

16. It was submitted that Mr Roman said he observed the robbers from inside the premises and then said he was at his house and that this raised a conflict. The evidence is not entirely clear as to precisely where Mr Roman was standing at particular times. However he did make it clear that his house is where the warehouse is, so that he would be in the Angco premises and at his own house at the same time.

17. Mr Roman could not name the accused's parents names. It is submitted I should therefore infer that Mr Roman did not in fact know the accused. Mr Roman gave quite some detail of his knowledge of the accused; he said:

a) he has known the accused since childhood;

b) the accused calls him uncle;

c) the accused comes and spends time at Mr Roman's house;

d) the accused eats at Mr Roman 's house;

e) Mr Roman goes to get betel nut from the accused's house.

18. When the accused went into evidence he did not deny knowledge of Mr Roman or refute any of the details of the contact Mr Roman spoke of. It is one thing to comply with the ruling in Brown v Dunn (1983) 6 R 67 (HL) and put the accused's case to the State witnesses. But it is another to have evidence which supports the accused's case. That evidence has to come from the accused and his witnesses unless some damaging admission or concession is made by the State witnesses. That did not happen here. There is simply no evidence to support the submission that the accused is unknown to Mr Roman. In the face of all of the evidence of contact with the accused that Mr Roman has given I am not prepared to draw an inference that they are unknown to each other, simply on the basis that Mr. Roman does not know the accused's mother and father's names. Many youths of the same generation thrown together in towns grow up feeling that they know each other, without ever meeting each other's parents. Takubar is not just a village, it is a large area comprising many communities. Friends made at school or on the sporting field may never meet each other's parents, or only do so in circumstances which do not lend themselves to being introduced on a full name basis.

19. Mr Roman's eyewitness identification is challenged on a number of bases: (a) identification of a Red Hat under orange light was submitted to be difficult to accept; (b) the man identified was wearing a cap with a visor which would cast a shadow over his face. The evidence was that the two robbers were standing directly under a fluorescent white light. How much orange light from the floodlights spilled into the area lit by the fluorescent is not known. Clearly there was a source of white light which would render colours accurately.

20. Next the person identified was wearing a visor cap, but not pulled down low over his face. There is no evidence as to whether the visor was in the front or as is sometimes the fashion, in the back. Assuming the visor was worn conventionally with the visor in the front, logic suggests there would be a shadow over the face. How much of a shadow depends upon how much light was being reflected off the surfaces, such as the warehouse walls, concrete paving etc. The size and shape of the visor would also affect the shadow; it may only affect the eyes and nose or extend on to the mouth. But this was apparently a well lit area with two light sources, the fluorescent and the floodlight. The precise circumstances are unknown because no evidence was adduced on the point.

21. Counsel for the accused has made a series of "post firing of the gun" submissions. Of importance to this aspect I consider are two points, first the injury sustained by Mr Roman was quite minor judging by the very small scar now left on his upper arm. It was probably caused by the entry of a single pellet. Secondly, there is no evidence that the robbers were pursuing the guards. A single shot was fired; the guards fled into the dark, but were not pursued by the robbers. The evidence is that outside the light range there was deep shadow. Once the guards reached the deep shadow they could feel they were in comparative safety. Especially once they looked back and saw that they were no longer the focus of the robbers’ attention. Mr Roman's arm injury would hurt a little, but the adrenalin generated by the flight would mask that and even reduce bleeding for quite a time afterwards. And when they were not being pursued, there was little else for the guards to do except wait and watch until it was safe to come out. So I do not find the evidence of watching and seeing a boy being hoisted over the wall of the warehouse or the doors of the warehouse being opened, illogical or incredible or out of keeping with the circumstances.

22. As to the submission that it was unbelievable that the witness discovered that night the amount of cocoa missing, the fact is we know nothing about how that fact was discovered. I have been asked to draw an inference that a warehouse must contain many bags of cocoa making it very difficult to discover the loss of 11 bags. But no evidence at all was adduced to support the theory. The contents of such warehouses must fluctuate up and down as produce is exported and other produce purchased. No assumptions can be made of how much cocoa was in the warehouse or what form of stacking or warehouse tallying is used. There is no basis to draw an adverse inference to reject the evidence.

23. Finally counsel for the accused asked, if the witness identified the accused that night why did he not take the police to the accused's house? Mr Roman's evidence is that he told the Police the names of those who were involved and where the accused's house was located. There is no suggestion nor evidence that the police could not find the house or could not follow the directions given. To my mind, once all of the information had been provided to the police, it does not follow that there is any other obligation, legal, logical or moral to do more to assist unless the witness was asked. There is no evidence that he was asked, so the argument simply has no basis.

24. In summary, the only point of substance against the evidence of Mr Roman is the shadow theory, and that is not supported by any direct evidence that there was in fact a shadow. This is a case of recognition, not identification of an unknown person. I consider it is safe to accept the identification subject to my conclusions on the alibi evidence.

25. When the accused gave his alibi evidence he was asked in cross-examination what day it was that he was with the family watching television and he said it was a Friday. In re-examination he said he could not recall what day of the week it was. The 5th of September 2002, the day named in the indictment as the day of the robbery, was a Thursday. I will deal with this and other anomalies in both the State and Defence cases relating to dates, and days of the week together. Discrepancies start with the State witness Mr Roman who said that the robbery occurred on 5 September 2002 "it was a Friday". The two statements cannot stand together, one of them is wrong.

26. Constable Eliza Aua said the accused was taken in for questioning on a Monday the 9 September 2002 and the record of interview taken the following day the 10 September 2002. This is consistent with the accused's statement in his s.96 statement in the District Court read by defence counsel during submissions. On the other hand, during the voir dire, the accused's mother Matilda Tade said that the accused went to Kokopo on Friday morning to sign the bail book and did not return, so that on the Saturday she and her husband went into Kokopo to look for him and found him at the police lock-up. She also said that it was a couple of days after the robbery when her son was taken into custody while signing at the Registry. The accused said he used to sign the bail book on Fridays. He came on the 6th of September Friday to sign the bail book, and was arrested in front of the Registry. Later it was put to him that he was arrested on 9 September and he conceded he could not really recall the day. Later he said that between 11 and 12 p.m. on Friday evening of the robbery he was watching television with a number of other families. They were watching the programme TuLait. The evidence from the EMTV program manager is that the program did not go to air until after 12 p.m.. Martha Konjip gave evidence that she was at the same house on that Friday evening also watching Tulait. ToPai Bokui gave similar evidence.

27. The conclusion that I reach is that I cannot rely on dates, days or times mentioned by any of the witnesses, other than the police constable who was referring to a written document and the s.96 statement. The only safe course is to confine my analysis to events, save that I consider it safe to find that the accused was arrested on Monday, 9 September 2002 because that coincides with the evidence of Constable Elijah Aua, the date on the record of interview taken the day after arrest (10 September 2002) and the contents of the accused's s.96 statement. If the accused was arrested on Friday morning the 6th he could not have been watching Tulait that night, nor could he have heard the bell ring when the robbery was in progress, if as he and his witnesses and Mr Roman for the State say, and I find is most probable, the robbery took place on a Friday night or the early hours of Saturday.

28. The accused's, s.96 of the District Court Act given on 17 December 2002 read and relied upon by his counsel during submission reads as follows:

"I was at home cutting copra and then I went to the beach and met Horris Manara and Eric Upai. We sat at Elcom's yard. We saw a vehicle - LAST TOEA drove from Takubar down to Angco. We sat a bit and vehicle drove back again with bags of cocoa. Not long after Police vehicle followed them up. We went down to sleep then. In a.m. we learnt that Angco was robbed. On Monday, I came to attend to my case, call over at National Court, Kokopo. Police held me there - and we went to Ramale and I was assaulted to admit the charge..."

29. Now the procedure set out under s.96 of the District Court Act calls upon the magistrate, having warned the accused that he is not obliged to say anything, to invite the accused to be sworn and give evidence on his own behalf. The magistrate is to tell the accused that whatever he does say may be given in evidence at his trial. And then s.97 goes on to provide that " statement... may be given in evidence without further proof " on his trial.

30. Defence counsel submission was that the statement shows a consistency on the part of the accused in that in the statement he says he was with Upai and in his alibi evidence he said he was with ToPai who are one and the same person. What is striking to my mind, is what he does not say in the statement, which he did say in his oral evidence, namely that he was in a crowded house full of people watching television, specifically the programme Tulait, that he heard the bell ring, and that it was necessary to go out of the house to see the vehicle. In his oral evidence the accused made no mention of being able to see the vehicle going towards Angco and indeed, such an observation is inconsistent with his oral evidence. According to his oral evidence he was in the house watching television, he would not have seen the vehicle going to Angco, he only saw the vehicle coming away from Angco because he went out to investigate the ringing of the bell. I consider these discrepancies demonstrate that the alibi is a recent invention.

31. Four-and-a-half years after the robbery, two witnesses come forward and provide an alibi for the accused, an alibi which is inconsistent with the s.96 statement given by the accused. The accused was committed for trial on 17 December 2002, he has spent much of that time on bail, but more than the last 12 months has been spent in custody. Both alibi witnesses are related to the accused. The witnesses were asked whether they came forward earlier and told the police about the alibi. One said she did not think of it and the other said he was concerned about the attitude the police may take to him. I do not regard either reason as credible. Counsel for the accused submitted that the police in East New Britain have a reputation for bashing people. In my view, if the alibi witnesses had a sufficiently firm view at all times of the innocence of the accused, it would be too simple to find some other villagers, or persons who were in the house with them watching television to come with them to the police station to protest the accused's innocence. The fact that the alibi witnesses did not go to the police, a lawyer or some other person in authority long before now demonstrates that they did not have a firm view of the accused 's innocence in 2002 or 2003, or even 2006 when the accused was in custody. At this distance from the events it is too easy for the witnesses to confuse in their memory successive days of watching television in a crowded house and convince themselves that the accused was with them on a particular night.

32. I accept the identification evidence, I reject the accused's alibi evidence, I do not think he is telling the truth for the reasons I set out in paragraph 30 and I consider that the other alibi witnesses are either not telling the truth or are mistaken.

33. I am satisfied beyond reasonable doubt that the accused was one of the persons who in company with another person armed with a gun held up Angco warehouse and stole 11 bags of cocoa. Whether that happened on 5th or 6 September 2002 is not relevant to the accused’s guilt or innocence. The New South Wales, Australia, Court of Appeal observed in Regina v Rodney John Stringer [2000] NSWCCA 293 (from the judgement of Groves J at paragraph 20)

"20. Although it is usual to insert the date or dates between which offences are alleged to have been committed, time has been stated to be of the essence in four situations, namely:

(i) when an act is criminal only when done within a certain time of some other act or event;

(ii) when it is an essential ingredient of a particular offence that certain consequences should follow a particular act;

(iii) when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; and

(iv) when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.

See Halsburys Laws of England 4th Edn Vol 11 para 207 n4".

34. In the case of The State v Titeva Fineko [1978] PNGLR 262 Prentice DCJ adopted a statement from Archibald on the English position as follows:

"From time immemorial a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence... the jury were entitled to find the appellant guilty of the offence charged... even though they found that it had not been committed on the date specified in the indictment."

35. In Papua and New Guinea, the Criminal Code is the last word on the subject and Section 534 provides:

"(1) an indictment is not open to objection-

...

For omitting to state the time at which the offence was committed unless the time is an essential element of the offence;
For stating imperfectly the time at which the offence was committed; or

For stating the offence to have been committed on an impossible day, or on a day that never happened or has not yet happened.

34. In this case the time may have been stated imperfectly in the indictment. As I have earlier found the offence was most likely committed on Friday 6 September 2002 or the early hours of Saturday. But that does not affect the validity of the indictment or the guilt of the accused. I convict the accused of the offence of armed robbery with aggravating circumstances, as charged in the second count. I acquit him of the charge in the first count.

_______________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner