N3588

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1386 OF 1999

THE STATE

V

MICHAEL MANOWI

Kimbe: Cannings J
2009: 12, 13, 17 February

VERDICT

CRIMINAL LAW – trial – armed robbery – identification evidence – alibi evidence.

The accused was indicted for armed robbery. Two State witnesses gave evidence that it was the accused who joined with another man in holding them up at gunpoint and stealing K51, 751.49 in cash and cheques, being the day’s takings of a retail store. They had also identified him in a police ID parade. The accused denied that it was him and gave sworn evidence that he was in another province on the day in question.

Held:

(1)	Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioned itself, as the tribunal of fact accordingly, the court was satisfied, having regard to the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, that the identification evidence was of very high quality, as:

•	each witness was credible and his demeanour sound;

•	the lighting was sufficient to make a clear identification;

•	the criminal’s face was uncovered;

•	each witness, though only looking at the criminal’s face for a matter of seconds, had sufficient time to make a clear identification;

•	each witness (and particularly the second) got a close-up view of the criminal’s face;

•	each witness, while in fear of his life, retained his composure sufficiently to make a clear identification;

•	each witness saw the criminal’s face front-on, with an uninterrupted line of sight;

•	there was no significant inconsistency between their evidence; 

•	each witness separately identified the accused at an identification parade conducted seven weeks after the incident.

(2)	As to the alibi evidence, the court was satisfied, having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, that its quality was poor and the alibi was, in fact, false, as:

•	though it was, in general terms, consistent with the accused’s record of interview, no notice of alibi was provided to the State, so it is a belated alibi;

•	the accused was an unimpressive witness as his demeanour was poor and he gave vague and inconsistent evidence;

•	the alibi was entirely uncorroborated.

(3)	As to weighing of the identification and alibi evidence, the identification evidence, considered alone, was sufficient to sustain a conviction. The alibi evidence did not give rise to any doubt that the accused was one of the criminals who committed the robbery and, being so poor, corroborated the State’s case.

(4)	The State proved beyond reasonable doubt that the accused was guilty of aggravated robbery under Sections 386(1) and (2) (a) and (b) of the Criminal Code.

Case cited

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Boria Hanaio & Others Cr Nos 122 & 123 of 2007
The State v Francis Vau Kamo (2006) N2991
The State v Noutim Mausen (2005) N2870
The State v Robert Wer & Others [1988-89] PNGLR 444
The State v Sei Nakiking Tubol & Others [1994] PNGLR 378

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigation Division
CR – Criminal case
ID – identification
K – Kina
N – National Court judgment
No – number
OIC – Office-in-Charge
PNGBC – Papua New Guinea Banking Corporation
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
Sgt – Sergeant
V – versus

TRIAL

This was the trial of an accused charged with armed robbery.

Counsel

F Popeu, for the State
R Beli, for the accused

17 February, 2009 

1. CANNINGS J: At 5.30 pm on Thursday 12 August 1999 an armed robbery took place in Kimbe. The manager of the K-Mart retail store, Tommy Leach, and one of the store supervisors, Alfred Giru, were held up close to the store. They were transferring the day’s takings to another location in town.

2. The accused, Michael Manowi, now aged 34, an East Sepik man who has lived most of his life at Kapore, near Kimbe, is charged with aggravated robbery under Section 386 of the Criminal Code, over his alleged involvement in the incident. He has pleaded not guilty so a trial has been held and this is the verdict of the court.

THE STATE’S CASE

3. Mr Leach and Mr Giru have given oral evidence about what happened that day. They were about to exit from the laneway between K-Mart and the then PNGBC bank. Mr Leach was driving and Mr Giru, the only other occupant of the vehicle, was the offsider. Mr Leach stopped the vehicle to give way to a passing utility. Before he could get going, a man walked towards their vehicle from across the street. He went close to Mr Giru’s door and pointed a gun at Mr Giru and ordered him out of the vehicle and demanded money. At the same time, another man approached the vehicle from the right, stood close and pointed a gun at Mr Leach. Neither gunman had his face covered.

4. Mr Giru handed the gunman a bag containing K51, 751.49 in cash and cheques. The gunman also demanded a Sepik basket that Mr Giru had hanging around his neck. This contained personal items and Mr Giru initially refused to give it up. But the gunman was insistent and it was handed over also. Both gunmen took off and commandeered and boarded a passing bus. A single gunshot was fired. The bus was driven off. The gunmen were gone with the money. Neither Mr Leach nor Mr Giru was physically injured.

5. Mr Giru said that he saw the gunman who was closest to him at nearby Kisere the following day. When he approached him, he melted into the crowd. He saw him again about six weeks later. He contacted the police who arrested the suspect and put him into custody. That suspect is the accused. A few days later, on 28 September 1999, a police identification parade was conducted. Mr Leach and Mr Giru separately identified the accused as the gunman who got the bag from Mr Giru.

6. In court, they each pointed out the accused as being that gunman.

THE DEFENCE CASE

7. The accused presented an alibi. He gave sworn evidence that on the day in question he was in Lae, Morobe Province. He had gone there to look for used cars, on the request of a couple, Rueben and Sheila. They live at Nahavio, near Kimbe. They paid for his ship fare. He travelled with a friend called Baptist. He left on 11 August 1999 and came back some time in December 1999.

8. In cross-examination, he could not remember Rueben’s or Baptist’s other names. Reuben is a mixed race man who still lives around Kimbe. Baptist has probably gone back to his village in East Sepik. It may have been in September, not December, that he came back. It was a long time ago and he cannot recall his return date but he can clearly remember going there in August.

9. That evidence is, apart from the confusion over his return date, generally consistent with what is in his record of interview, dated 6 October 1999. That was the only evidence for the defence. There was no other corroboration.

ISSUES

10. It is agreed that there was an armed robbery on the day in question and that Mr Leach and Mr Giru were held up by two gunmen and that cash and cheques were stolen. What is not agreed is that the accused was one of the gunmen. To determine whether he was one of the gunmen, four issues must be addressed:

1	What is the quality of the identification evidence?

2	What is the quality of the alibi evidence?

3	What is the result of weighing the alibi evidence against the identification evidence?

4	Has the State proven the elements of the offence beyond reasonable doubt?

1	WHAT IS THE QUALITY OF THE IDENTIFICATION EVIDENCE?

11. Defence counsel, Mr Beli, submitted that the evidence of Mr Leach and Mr Giru was unreliable. Both admitted that they did not know the accused and had never seen him before the robbery. They have not seen him since the ID parade. They both feared for their lives and Mr Leach said that he panicked. Neither had been a victim of armed robbery before so they were unprepared and not in a sufficiently balanced state of mind to be able to remember the face of the gunman. Mr Giru gave evidence that he had to control Mr Leach, as he was afraid he might do something out of the ordinary. The robbery happened so fast – it was over and done with in a space of seconds – that neither witness had a chance to make a positive identification. Neither witness could point to any distinguishing facial features such as a tattoo or scar that would have enabled them to remember the gunman. Mr Leach was distracted by the other gunman standing at the driver’s side of the vehicle with a gun pointed at his head and he would not have been able to get a clear view of what was happening on the other side of the vehicle.

12. I have considered all those submissions in light of the competing submissions of the prosecutor, Mr Popeu. I have also considered the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698, which I summarised in other Kimbe cases, The State v Noutim Mausen (2005) N2870 and The State v Francis Vau Kamo (2006) N2991.

13. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.

14. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (e.g. a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (e.g. was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (e.g. did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

15. Having considered all of the above matters, I record the following relevant considerations:

(a)	Both State witnesses gave clear and concise evidence. Their demeanour was good. It was neither proven nor suggested that they had any motive for giving false evidence. They were honest witnesses.

(b)	The fact that they were identifying someone they did not know and never seen before and had not seen since the ID parade does not by itself render their evidence unreliable.

(c)	Though they both said that they feared for their lives and Mr Leach said that he panicked and Mr Giru said he had to make sure that Mr Leach did not do anything untoward (such as not co-operating with the criminals), they were not in such an unbalanced state of mind that they would not be able to remember the face of the gunman. Each witness retained his composure sufficiently to make a clear identification. Though Mr Leach said he panicked, his evidence suggests that, in fact, he did not. He just froze. He did not try to drive away while the criminals had their guns pointed at them. This was a normal reaction. As for Mr Giru, he gave the impression that he remained calm, but concerned and alert, throughout the ordeal.

(d)	Though it was over and done with within a few seconds – certainly less than a minute – this was ample time for the witnesses to recall the face of the gunman who got the money bag from Mr Giru.

(e)	The fact that neither witness remembered any distinguishing facial features is not a material consideration.

(f)	Though Mr Leach was, at one point, distracted by the gunman standing to his right, he said that he had already got a clear, uninterrupted front-on view of the gunman who went to Mr Giru’s side as he walked across the road towards their vehicle. He got a clear view of him through the front windscreen, he said. Mr Giru also had a clear view of the gunman through the front windscreen. When he came up to the door, he got a good view of his face. They negotiated over his Sepik basket and he got an even closer front-on, close-range, view of the gunman’s face.

(g)	The lighting was sufficient to make a clear identification. It was 5.30 in the afternoon. It was a fine day, both witnesses said.

(h)	The gunman’s face was uncovered.

(i)	Each witness separately identified the accused at an identification parade conducted seven weeks after the incident. The results of the parade are recorded in a pro-forma summary document and an affidavit by the OIC of the Kimbe CID, Chief Sgt Sege. Both documents were admitted into evidence. The results of the ID parade were unchallenged by the defence.

(j)	Though each witness said that he had not seen the accused since the ID parade – nine and a half years ago – I do not think that detracts unduly from the quality of their evidence as they both identified the accused in the dock without hesitation.

16. In light of the above, I have concluded that the evidence of Mr Leach and Mr Giru is honest, accurate and reliable. The identification evidence is of very high quality.

2	WHAT IS THE QUALITY OF THE ALIBI EVIDENCE?

17. Mr Beli submitted that the accused could not have been the gunman as he gave sworn evidence that he was in Lae on the day of the robbery. He told the court why he went there and gave the names of the people who sent him there.

18. I have considered that submission in light of the competing submission of the prosecutor, Mr Popeu. I have also considered the principles on alibi evidence in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318, which I summarised in other Kimbe cases, The State v Noutim Mausen (2005) N2870 and The State v Francis Vau Kamo (2006) N2991. 

19. I remind myself that if an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, e.g. since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

20. Having considered all of the above matters, I record the following relevant considerations:

(a)	Though the story about being in Lae was, in general terms, consistent with the accused’s record of interview, no notice of alibi was provided to the State. Leave of the court was not sought under Order 4, Rule 4 of the Criminal Practice Rules, to adduce evidence of the alibi. Strictly speaking, it should not have been admitted (The State v Robert Wer & Others [1988-89] PNGLR 444, The State v Sei Nakiking Tubol & Others [1994] PNGLR 378). But the prosecutor raised no objection and it was admitted. The admission of evidence and the weight to be attached to it are two different things, however. The circumstances in which the alibi evidence came to be admitted make it tantamount to a belated alibi and tend to lessen the weight to be given to it.

(b)	The accused was an unimpressive witness. His demeanour was poor. He gave the appearance of someone who was lying.

(c)	His memory was selective. He could remember the exact day he left for Lae, 11 August 1999, which happened to be the day before the robbery, but not the day or even the month he returned. Mr Beli attempted to explain away these discrepancies by pointing out that the accused had only a grade 2 education. This was an unconvincing argument. The accused presented as a reasonably intelligent sort of person. However, his evidence was vague and inconsistent.

(d)	The alibi was entirely uncorroborated. The court was informed that the couple who the accused said sent him to Lae would give evidence but that did not eventuate.

21. In light of the above, I have concluded that the evidence of the accused is not honest or credible. The alibi evidence is poor and I determine that, in fact, it is a false alibi. 

3	WHAT IS THE RESULT OF WEIGHING THE ALIBI EVIDENCE AGAINST THE IDENTIFICATION EVIDENCE? 

22. Having assessed the two bodies of evidence, I am of the view that the identification evidence, considered alone, is sufficient to sustain a conviction. The alibi evidence does not give rise to any doubt that the accused was one of the criminals who committed the robbery. On the contrary, as a false alibi has been presented to the court, this corroborates and strengthens the State’s case.

4	HAS THE STATE PROVEN THE ELEMENTS OF THE OFFENCE BEYOND REASONABLE DOUBT?

23. The State has proven beyond reasonable doubt that the accused was the gunman who removed the money bag in the armed robbery of the K-Mart employees on the afternoon of 12 August 1999.

24. As I pointed out in a Buka case, The State v Boria Hanaio & Others Cr Nos 122 & 123 of 2007, 24.10.07, the offence of robbery, created by Criminal Code, Section 386(1) consists of four elements:

•	stealing something; and

•	using or threatening to use actual violence to any person or property; and

•	in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen; and

•	at, immediately before or immediately after, the time of stealing it.

25. The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber:

•	is armed; or

•	is in company with at least one other person; or

•	wounds or uses personal violence.

26. All elements of the offence of robbery have been proven beyond reasonable doubt. The State has also proven that the accused was armed and that he was in company of at least one other person. He is therefore guilty of aggravated robbery.

VERDICT

27. Michael Manowi is found guilty of aggravated robbery under Sections 386(1) and (2) (a) and (b) of the Criminal Code, as charged.

Verdict accordingly.

____________________________

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