State v Tilon [2010] PGNC 22; N3966 (11 February 2010)

N3966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 581 OF 2005

THE STATE

V

DANKEN TILON

Kokopo: Sawong, J.
2010: 9, 10, 11 February

CRIMINAL LAW – Criminal Code Section 386 – aggravated robbery – issue of identification – moon light – light from lamp – witness under threat – circumstance probative value to confirm identification/recognition – identification unsafe.

Cases Cited

John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153

Counsel

L. Rangan, for the State
J. Ainui, for the Accused

DECISION

11 February, 2010

1. SAWONG, J: The Accused stands charged that at about 7.30 pm of 20 November 2004, he and 6 others robbed a trade store owned by Elison Eliakim of Marmar Village in East New Britain. They stole trade store goods and some K110.00 in cash. The value of the trade store goods, are not known.

2. The issue for trial was one of identification. In order to prove its case the State called two witnesses who gave sworn oral evidence. Only one of them, During Eliakim was cross examined. In addition the State tendered by consent several written statements. These were:

1. The Record of Interview between Accused and the investigating officer- Exhibit "S 1 (a) & (b) respectively.
   
2. Statement of the investigating officer – Exhibit "s S 4"
   
3. Statement of the Corroborator – Exhibit "S 2"
   
4. Statement of Elison – Exhibit "s 3"
   
5. Photographs of the scene

Crime numbering 1 – 5 - Exhibits "s 4"

6. Photograph of a shoe & other items - Exhibit "s 5".
   

3. During Eliakim gave evidence that he was lying on his stomach on a cement slab when the seven men arrived at the store. He was shocked. He says the accused was armed with a gun and he swore at him. He said at that point in time the Accused didn’t cover his face and wore a cut jean and cut sleeve shirt & wore pair of Dunlop shoes. He says he knows the accused well as sometimes they talk to each other and the Accused goes around to his place as he is related to his father, the victim of the robbery.

4. He says that he was able to recognize the Accused from the moonlight and light coming from lamp inside the shop. He stated that the moonlight was not bright enough. He then said that after the robbery the Accused came and gave him a biscuit and he looked up from where he was lying down and saw tattoo on the accused hand and on the left side of his face.

5. In cross examination he said that when the group of men first approached him as he was lying down he did not recognize any one of them. He also stated in cross-examination that the moon light was not clear and that the light from store was also not bright. He was still lying face down on his stomach on the cement slab when the robbers went into the shop. Although he was tested on his evidence of recognition of the Accused, he generally maintained that he did recognize him. I will discuss his evidence more later on.

6. The next evidence came from Cletus Dominic. His evidence relates to what he and others did after the robbery had taken place and after the robbers had fled the scene. He gave no evidence of identification. His evidence is of no probative value and I give little weight to it.

7. The next piece of evidence comes from the Statement of Elison Eliakim, Exhibit "S3". I quote from his statement the relevant part, which reads:

"While I was listening to the radio, I heard a sharp noise of a bush knife against the post of the building. Could no longer hear any noise from my two sons outside the front store, there were total silent. I got up lifted my eyes over the counter to look outside, I was surprised to see a man walked into the store wore a black mask over his head, pointed the gun at me. I did not say or do anything. Another four men came in and ordered me to lay on the floor. While I was lying on the floor, they stole the store goods, filled in two baskets, two copra bags and two bags. Two other men stood watch at the door while two others stood watch outside where my two sons were sitting. The man with the gun asked me for money. I told him the money is on table in my office, K60.00 belongs to store and K50.00 belongs to bottle shop. I got up and went with him and he collected the money. The man holding the gun is tall dark skin. After picked up the money, beer and store goods they ordered me to lay down and they fled out into the dark".

8. He too does not identify any of the robbers. The Record of Interview, the Statements of the interviewing officer and the Corroborator are of no probative value. I give little weight to those statements.

9. In his defence, the Accused and one Caspar Otto gave sworn evidence and were cross examined. The Accused said that he was at the softball field with his team practicing for a game the next day. After practicing, at about 5.30 pm he and several of his team mates, together with Caspar Otto, Wayne Tilon and others walked slowly up the place where there was to be a church crusade. They arrived at the crusade place, a few minutes before it started at 6 pm. He said he was there at the crusade from the start till it ended between 9 & 10 pm that night. He said that whilst they were at the crusade he heard the bell ringing. He said that after the crusade, he and his family members together with his team mates went to his house to spend the night. He said he didn’t know During Elison and has never spoken to him before, though he does see him occasionally when he is on his way to town. He denied being involved in the robbery.

10. The next witness was Caspar Otto. He was also charged and tried for the same offence. After a trial he was found not guilty and acquitted. He says that he and his team mates were at the softball field. He said he saw Dunken at the field from about 3 pm and were practicing there till about 5 pm and they went to the crusade. He confirms that the Accused was there at the field and subsequently he, the Accused and others all went together to the crusade. He also confirms that as they were on their way the Accuseds wife and mother joined them. He also says that they were all at the crusade when they heard the bell ringing. They participated at the crusade until it ended at around 9 or 10 pm. After the crusade he and his team mates went away to their home and the Accused and his team mates went to the accused’s village. In summary, he confirms the alibi evidence of the Accused. His evidence was neither destroyed or shaken in cross examination.

11. The law on identification is well settled. I warn or caution myself of the dangers of convicting on the single evidence of identification witnesses. A convincing witnesses maybe a mistaken one. Even convincing witnesses can be mistaken: John Beng v The State [1977] PNGLR 115, Biva Geta v The State [1988 – 89] PNGLR 153. In considering this issue, the Court should take into account several factors in assessing the accuracy of a witness;

(a) The impression left by the eye witness 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 identified has been observed.

(d) The circumstances in which the eye witness finds himself or herself when making the observation.

(e) The existence or otherwise of other evidence, direct or circumstantial of facts or circumstances independently proved. See Criminal Law of Practice of Papua New Guinea, 3rd edition p 638.

12. There is no dispute that on the evening of 20 November 2004 at Marmar village 7 armed men held up the owner and his sons of a Trade store and stole store goods, and cash. The only contention in whether the Accused was one of the person who committed the robbery.

13. The only eye witness testimony of identification of the Accused is from During Eliakim. His evidence must be examined carefully, to see if it would be safe to convict on his evidence.

14. I am caution about accepting his testimony for a number of reasons. First, in his evidence in chief, he said that when the robbers held him up, the person holding the gun was not masked. He said he recognizes him. However, in cross examination he said that at the time the group of men approached him he didn’t recognize anyone of the robbers. He said he didn’t recognize any of them. Thus there is inconsistent evidence.

15. Secondly, if one looks at photo of the store (see photo. 5 – Exhibit s5" ) it will be seen that there is roof over the cement slab. Thus, the moonlight could not have given much light. In addition, there is no evidence of what type of lamp was in the store. The witness was lying face down on the side of store, and in so it would have been much difficult to see clearly from a small light coming out of the store.

16. Thirdly, as he said he was shocked when he saw the group of armed men coming towards him. I doubt very much, if he could have seen any of them clearly. He said he observed the Accused for 10 seconds. In my view that could hardly given anyone anytime to look closely at anyone when one is being held up by several armed men. At the highest it was a fleeting observation made in difficult circumstance.

17. There was in my view insufficient light to positively identify anyone, let alone the Accused. The evidence is that he was lying on his stomach facing down on the side of the store on a cement slab, and the moon light was not bright. If he was lying on the side, how could he have seen the accused from the light coming from inside. See for instance photograph 5 of exhibit "s 5".

18. Fourthly, as to the second opportunity of observation, I also treat it with caution. There is also conflicting evidence between the State witness, namely the father & son. His father said that the gun man had covered his face and head. He also stated that as soon as they robbed the store they fled the scene. There is no evidence from the father that the gun man took off his mask at anytime. During said he saw the Accused when he gave him a biscuit. Why would a robber after robbing you stop to give something back to you. It does not make any sense. Further more, in my opinion, During would have had great difficulty in seeing the Accused the second time, because there were two watchmen standing and watching him. Moreover the light was not good. I am sure he was scared. And so, in my view the circumstance of observation was difficult.

19. Finally, Elison’s evidence and During’s evidence do not add up. How is it possible that During was able to see that Accused with no mask and 10 seconds later the Accused, who is alleged to be the gun man, walks in with a mask. In my view the circumstance of the robbery was swift and fast that, I don’t think During was able to recognize the Accused properly or at all.

20. In the end I am not satisfied with the state of the evidence. I have some doubts. In the first analysis the State has not proved its case beyond reasonable doubt.

21. I therefore find the Accused not guilty. In view of my conclusion, I do not consider it necessary to say anything on the defence of alibi, but it is sufficient to say that the State has not disproved that defence. It has offered no contrary evidence. Indeed as Mr. Rangan, properly conceded in submissions, the investigation Officer who made further enquiries on this aspect, found that the potential witnesses confirmed the Accused’s version on this aspect.

22. The end result is, as I have said earlier, the State has not proved its case, beyond reasonable doubt.

23. The Accused is acquitted and discharged forthwith.

_______________________
Public prosecutor: Lawyer for State
Public Solicitor: Lawyer for Defence