State v John [2007] PGNC 89; N3201 (15 March 2007)

N3201

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1001 OF 2002

THE STATE

V

ANDREW NANE JOHN

Kokopo: Lenalia, J.
2007: 6– 9 March
15 March.

CRIMINAL LAW – Armed robbery – Not Guilty Plea – Trial – Criminal Code, s.386 (1) (2) (a) (b) Ch. No. 262.

CRIMINAL LAW – Trial – Evidence – Submission of "no case to answer"
– Appropriate principles – Finding of case to answer – Guilty verdict.

Cases cited

John Beng v The State [1977] PNGLR 115
The State v Roka Pep (N0.2) [1983] PNGLR 287
Biwa Geta v The State [1988-89] PNGLR 153
The State v Paul Kundi Rape [1996] PNGLR 96

References
Cases and Materials on "EVIDENCE" by P.K. Wright and C.R. Williams.
English Criminal law Revision Committee-11th Report (1972) par196
Counsel

L. Rangan, for State
N. Manliaki, for Accused

15 March, 2007.

1. LENALIA, J: The accused was indicted with one count of aggravated armed robbery contrary to Section 386 (1) (2) (a) (b) of the Criminal Code, Ch.262. This serious crime took place at Tropicana Supper Market in the Rabaul town on 23 July 2001. After he was arraigned, the accused entered a plea of not guilty. A short trial was conducted and the following evidence was adduced by the prosecution.

2. Evidence tendered by consent of the defence counsel were the statements of First Constable Tom Baul, First Policewoman Constable Baiai Lambert (see Exhibits "1" & "2) and the record of interview (Ex. "3" & "4" Pidgin and English translation respectively).

3. The two eye witnesses called were Roselyn Minal and Regina Kapet. In case of Roselyn, she was a till operator at the time of the robbery. While she was on the counter, she heard a loud bang on the till followed by a gun being fired by someone. She bent down and ran to the back of the shop where they took cover with others in a small room. Whatever was done when they were hiding in the back room, she did not see. On the amount of cash stolen being quoted as K1, 118.00, all this witness could recall was a float amount of cash money was taken by the robbers.

4. The second witness, Regina Kapet was a student at the time the robbery occurred. She was age 15 years then. About midday, she went to the Tropicana shopping centre in Rabaul with her sister. While they were looking through store goods, she heard a gun being fired.

5. She turned and looked to her back towards the counter and she immediately recognized two men. She named those two men as Steven Palita and Joanes Nane.

6. Then after seeing what happened she ran together with others to the back of the shop where there is a small room where they hid inside. In examination in chief, Regina was asked if she knew of the two persons she had named. She said, she recognized the two men because they all come from Iawakaka village on the North Coast area of this Province. She was asked if, she could see anyone of the description of the person whom she named as Joanes Nane she saw on the date of the offence, she pointed to the accused and said, the person sitting in court is Joanes Nane.

7. During cross-examination, the witness was asked as to how much time it took her to see the two men. She replied that it might have been something around two to three seconds. She was further asked if two or three seconds was such a fleeting glance that she could not properly identify the robbers. The witness confidently said that, although she had not seen the accused for sometime as he is living in a block at Keravat, she was sure that the persons she saw standing over the till were Steven Palita and Joanes Nane.

8. It was suggested to the witness that when she saw the two persons, she then merely thought that, the second person was Joanes Nane. Regina said, although she was frightened, when she saw the accused she thought it was the accused as well as she realized and recognized that it was the accused Joanes Nane. An interesting revelation made by Regina Kapet in her evidence is that, the accused had engaged someone by a person whom she only referred to as "Blasius" to send her away on the 6th of this month when the matter was first called. Regina did not turn up that day despite being present in the court’s precincts that morning.

9. There were no other witnesses and Mr. Rangan of counsel for the State submitted his case closed.

Submission of "no case to answer".

10. After closure of the prosecution case. Ms. Maliaki of counsel for the accused submitted that she wanted to make a submission of no case to answer. Counsel’s submission was twofold. First, she submitted that, by the second leg of the principles stated in the case of The State v Paul Kundi Rape [1976] PNGLR 96, (see also The State v Roka Pep (N0.2) [1983] PNGLR 287) her client was not identified correctly. That part of her submission is based on the evidence of the second witness that she observed Joanes Nane for a very short time only and there was likelihood that, Regina might not have identified the accused correctly.

11. The second part of the defence submission of no case being made out against their client is that, the name of the accused given by witness Regina Kapet was totally different from the name on the body of the indictment. On the indictment, the name of the accused appears as ‘Andrew Nane John’. Counsel submitted that the accused in court is a different person.

12. In reply to the defence submission, Mr. Rangan submitted that there was sufficient evidence before the court to find that there is a case for the accused to answer.

13. On the 9th of this month, the court made an ex tempore ruling on which it ruled that, there was sufficient evidence to go past the second leg of the principles stated in The State v Paul Kundi Rape (supra).

14. The second part of the ruling related to the names appearing on the indictment and those given by witness Regina.

15. On the issue of different names, the court ruled that, the name Joanes could be used interchangeably. Some people in the village may refer to the accused as Joanes Nane while others may refer to him as John. The above conclusion was secondary only to the overwhelming affirmation by witness Regina that the person sitting in court was none other than Joanes Nane of Iawakaka village. If Regina Kapet could vividly and distinctively identify the accused as "Joanes Nane sitting in court", it enabled the court to infer that the names appearing in the indictment could possibly be applied interchangeably particularly as "Joanes". The court rejected the defence submission and called upon the accused to call his evidence and if he wanted to give evidence it was open for him to do so.

Defence Evidence.

16. The accused’s evidence is total denial and an allegation of alibi. On the defence of alibi, there was no notice of such defence served on the State. The accused said, on the date of the robbery, he was down at Iawakaka beach with his brother and his uncle. They went for a fishing trip that day. He did not go anywhere until late afternoon when they returned to the village.

17. Two factors affect the credibility of the defence evidence. First, the accused raised a defence of alibi. It was incumbent upon him to file a notice of such defence. No such notice was filed. Secondly, if it was a general denial, the accused had ample time to collect his two witnesses, namely Blasius Milat and Cosmos Tali. Blasius is an uncle of the accused while Cosmos is his brother.

18. On the witness stand the accused was asked in cross-examination as to why he did not call his witnesses when he knew that, they were crucial witnesses to the defence case. The accused answered that he did not inform them about the hearing date of this case. Even then, two other factors would have affected the accused’s case. One factor in his favour is had he instructed his lawyer properly, counsel would have applied for adjournment to allow him to call his two witnesses. The second factor against the accused is, as Mr. Rangan correctly put to the accused in cross-examination, the allegation by the accused in question 15 of the record of interview and its answer that he was alone at the beach on the date of the offence. How can the accused now better recollect and understand what he did on 23 July 2001 with the lapsing time of more than five years than the date he was interviewed namely 7 February 2002.

Submission on Verdict.

19. When the defence case closed, Ms. Maliaki made a submission on the status of the evidence. Her submission was basically that, the mode of identification made by the two witnesses was very fast and she further submitted that the witnesses did not properly identify the accused.

20. The basis on such proposition is that because it was the first time for the witnesses to see the accused. As well since the two witnesses were in fear for their lives, they could not have identified the accused properly.

21. For the State, Mr. Rangan submitted that although the first witness could not identify the accused properly, the second one correctly identified the accused and the court should return a guilty verdict. He further submitted that, the second witness had had a vivid recollection of the accused appearance and the court should believe such witness as the accused and Regina come from the same village.

Law.

22. The accused is charged with an offence of aggravated armed robbery, a crime under s. 386 (2) (a) and (b) of the Criminal Code. The offence was committed with threats of actual violence. The prosecution evidence reveals that at the time of the robbery, a co-offender to the accused fired a gun into the air to scare those who were working in the shop together with customers. A part from that a bush-knife was used to cut the counter and till in order to have the till open making it an easy access to steal the money alleged on the indictment.

23. The main issue is one of identification. It is trite law that in a case where evidence of identification is relevant, the court ought to be mindful of all inherent dangers and the need for caution before convicting on reliance on the correctness of identification evidence. There is sometimes a possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken. Even in a case where a witness is purporting to recognize someone he or she knows mistakes can be made. It has been also said that recognition is more reliable than identification of a stranger: John Beng v The State [1977] PNGLR 115.

24. In Biwa Geta v The State [1988 – 89] PNGLR 153 the Supreme Court had the following to say on the issue of identification evidence at page 160-161:

"In this case where the State relies on the correctness of identification evidence which the defence alleges to be mistaken, I must warn myself of a special need for caution before convicting in reliance on that identification. I note in terms of John Beng -v- The State [1977] PNGLR. 115 or R -v- Turnbul [1976] 3 All. ER. 549, the possibility that a mistaken witness could be a convincing one and that a number of witnesses could be mistaken. I remind myself of the need to examine closely the circumstances of the identification made by each witness. For example, how long did the witness have the accused under observation? If only occasionally, had he any special reason for remembering the accused? How long had lapsed between the original identification and the subsequent identification to the police? How long had lapsed between the original identification and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, I remind myself that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of identification evidence. When the quality is good, the value and strength of identification evidence is enhances. When the quality of identifying evidence is poor – that is, a fleeting glance or a longer observation made in difficult conditions – the evidence is of little or no value".

25. I adopt the above warnings and apply them to the circumstances of the case before me and I further say that, in a case like the one before me where the State has relied on one single eye witness, I must be extra cautious in how I treat the evidence of witness Regina Kapet. The accused is charged with an offence involving the class of evidence, which may frequently lead to unsafe and unsatisfactory convictions unless this court is sure beyond reasonable doubt about the correctness of identification.

26. The danger of convicting an accused person without proper warning has led to unsafe and unsatisfactory convictions. This fact prompted the English Criminal Law Revision Committee in their Eleventh Report (1972) at paragraph 196 where the Committee made the following remarks.

"We regard mistaken identification as by far the greatest cause of actual or possible wrong convictions. Several cases have occurred in recent years when a person has been charged or convicted on what has later been shown beyond doubt to have been mistaken identification. In some cases the actual offender has afterwards admitted his guilt. Convictions have also been quashed because of doubts as to the correctness of identification. Some of these cases have naturally caused great public disquiet ------. We regard this as one of the most important matters with which we have been concerned".

(see Cases and Materials on "EVIDENCE" by P.K. Wright C.R. Williams at page 31).

27. I now duly warn myself of the above danger and I must say that the accused was not a stranger to witness Regina Kapet. The witness said she knew the accused well as they come from the same village. Despite the accused living at the block at Keravat, she maintained that it was the accused whom she saw at Tropicana supper market in Rabaul on the date of this offence.

28. Having warned myself of the above dangers inherent in convicting the accused on the identification evidence by the State’s witness, I am sure beyond all reasonable doubt that, the accused was the person whom Regina Kapet identified at the Tropicana supper market at Rabaul. I find the accused guilty of the offence charged and convict him accordingly.

___________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused