N7447

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 785 OF 2015

THE STATE
v
ANKELMAN KEITH

Lae:	Numapo AJ
2018:	06th March; 02nd – 24th July & 07th Sept.

CRIMINAL LAW – Particular Offence – Armed Robbery s 386 (1) (2) (a) (b) Criminal Code – Plea of Not Guilty – Accused elected to remain silent – Defence offers no evidence – Issue is one of Identification – Need for caution before convicting on the correctness of identification - Identification sufficiently corroborated - Accused found guilty. 

Held:

(i)	The general rule on identification is that when the evidence against the accused person depends wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification.

(ii)	The Court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.

(iii)	Evidence from the witnesses relating to the clothes worn by the accused on the day of the robbery is sufficiently corroborated.  

(iv)	The witnesses’ observation of the accused during the robbery was not impeded or obstructed in anyway. It took only half an hour from the time they first observed the accused to the time he was arrested. Their memories were still fresh and could not have lapsed within that short period of time in so far as identification of the accused is concerned.

(v)	The evidence of identification is further strengthened by the fact that the witnesses have seen the accused before and have prior knowledge of him and described the accused as a ‘familiar face’ within Lae.

(vi)	Accused is found guilty as charged.

Cases Cited: 

The State v Beng [1976] PNGLR 471; Beng v The State [1977] PNGLR 524; [1977] PNGLR 115 
Ono v The State (2002) SC 698.
The State v Anis Noki [1993] PNGLR 426. 
The State v Kakas & Ors [1994] PNGLR 20. 
Piakali v The State (2004) SC 771. 
Bate v The State (2012) PBSC 46, SC 1216 

Counsel:

J. Done, for the State
S. Katurowe, for the Defence 

RULING ON VERDICT 

1.      NUMAPO AJ: This is ruling on verdict.  The accused ANKELMAN KEITH of Siar village, Madang, pleaded Not Guilty to one count of Armed Robbery under section 386 (1) (2) (a) (b) of the Criminal Code and the matter proceeded to trial.

A.	BRIEF FACTS

2.     The State alleges that on the 02nd of October 2014 between 7pm-8pm, the accused and his friends were at NWTL Digicel and Fone Haus shop at Central Avenue, Top Town, in Lae.  They were armed with a homemade shotgun and issuing threats of violence, held up the members of the public next to the store whilst his accomplices held up the Manager, Dominador Breis and his staff and stole the following items; a Lenovo Laptop valued at K2,000.00, a HPC iMG Phone that cost K1,800.00, P132 Philips Mobile Phone valued at K99.00, a Nokia Lumia phone at K499.00 and K600 cash money.  The total value of the stolen goods stands at K7,689.00.

3.     After committing the robbery, the accused and his accomplices escaped in a getaway vehicle, a double cabin Toyota Hilux green in colour.  The accused was later apprehended by the police and charged.

B.	STATE’S CASE 

4.     The State’s case consisted of documentary evidence and oral evidence from three witnesses.  The documentary evidence comprised of the following: 

(i)	Police Record of Interview dated 04th November 2014 – ‘Exhibit 2’

(ii)	Statement of Dominador Breis dated 10th October 2014 -‘Exhibit 3’

(iii)	Statement of David Jefferson dated 10th October 2014 – ‘Exhibit 4’

(iv)	Statement of Mary Popau dated 04th October 2014 – ‘Exhibit 5’

(v)	Statement of Rita Kungus dated 24th October 2014 – ‘Exhibit 6’

5.     The three witnesses who gave oral evidence are; Police Constable Benjamin Philip, Harold Narua and Demas Michael.

6.     Witness Benjamin Philip told the Court that after work he met up with Harold Narua and they both went to Big Rooster shop in town bought snack packs and sat outside and ate their meals.  He noticed a vehicle driving past and stopped in front of the NWTL Digicel and Fone Haus shop about 8-10 metres away from where they were sitting.  The occupants of the vehicle came out and shouted abuses to people walking near the shop.  He saw a man coming out with a gun to do the ‘clearing out’ (an expression used to clear a particular area when an operation is about to take place) and shouted at the people to stay calm and not to move. The accused ran towards the middle of the road with the gun and was only 5 metres away from where he and Harold were sitting and pointed the gun at them and told them not to move. Whilst the accused was doing that his accomplices held up the two expatriate managers and stole the goods from the shop.  The robbery happened so fast and he estimated that it lasted for only 1-2 minutes.  The accused then jumped into the getaway vehicle and escaped with the other robbers.  He then went to the police station and reported the matter to the police.  

7.     He clearly recognized the accused as there was a big spot light shining from the Big Rooster shop towards the main street of Central Avenue and also lights from the Remington shop (formerly BSP) and the Fone Haus shop itself.  Furthermore, he described the accused as a familiar face as he has seen him before on many different occasions around the Top Town area, at the Melanesian Hotel, at Food Mart and several times at 7th Street/Huon Crescent when he goes to drop off his work colleague there after work. 

8.     At the time of the robbery he saw the accused wearing a black wool cap, black coat with a red T-shirt inside and a short jean trousers.  He recognized him when he was arrested and brought to the police station half an hour later after the robbery.

9.     The second witness Harold Narua was with Benjamin Philip at the time and gave basically the same evidence.  He said the accused was wearing a wool cap, a black coat with a green T shirt and a blue cut jean.  After the robbery the robbers drove towards the 4th street.  A police unit arrived at the scene some 10 or so minutes later and he got into the police vehicle and directed them to drive towards the 4th Street where the robbers fled to after the robbery.  They saw the getaway vehicle abandoned there.  Not long after they saw the accused walking up with two other people and he immediately recognized him and told the police.  At the time the accused was still wearing the green T-shirt and the cut jeans trousers but not the wool cap and the black coat.  Police then arrested the accused and took him to the police station.  He estimated that the total time of the robbery to the time of the arrest would have been around 10-15 minutes.

10.     The third witness Demas Michael stated that he met the accused when he was walking his cousin sister back to her house at 4th Street after having dinner at his place.  The accused came out of his house which is about 12 houses away from the witness’s house and they took a short cut through 7th Street/Huon Crescent up to the 4th Street.  He was wearing a blue wool cap, maroon T-shirt and a blue cut jeans.  The accused walked with them to buy betelnut when they were stopped by the police.  The police signaled to the accused to go to them and arrested him and took him to the police station. 

C.	DEFENCE CASE

11.    The accused elected to remain silent and defence did not call any evidence. There was no formal defence raised at the trial.

12.     The accused denied committing the offence and his denial is recorded in the Record of Interview (ROI) conducted by the police on the 10th of November, 2014 (‘Exhibit 2’).  

13.     The accused basically told the police that on the 02nd of October 2014, he was at home the whole day and has no knowledge of the armed robbery.  A friend of his by the name of Bewaro Gabriel who lives in Bumbu visited him at his house at 10am in the morning.  He wanted his friend to assist him to fill out some documents to withdraw his late Father’s Nasfund savings.  They then went to the Court house to get it stamped.  He returned back to his house around 11am and met up with several people including his brother Kulang Keith.  The others were Janet Keith, Kulang’s sister-in-law Isolda and his uncle Paul.  At around 6:30pm Hilda cooked dinner and they ate.  He put his son Ruston to sleep and went for a walk. He met Demas Michael and went with him and his cousin sister up to 4th Street at the gate of Lae International hotel.  They arrived there at 7pm.  It was there that the police arrived and told him to get into the police vehicle and they took him to the police station.

D.	ISSUE 

14.     The issue is one of identification; whether the accused was in the company of others, armed with a dangerous weapon and robbed the Fone Haus shop on the evening of 02nd of October 2014.  

E.	EVIDENCE OF IDENTIFICATION

15.     The State’s case rest primarily on the positive identification of the accused. 

16.     The general rule on identification is that when the evidence against the accused person depends wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification. 

17.     The Supreme Court in The State v Beng [1976] PNGLR 471, and in Beng v The State [1977] PNGLR 524; [1977] PNGLR 115 (2 May 1977) held that;

“….where evidence of identification is relevant, the court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification…the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows, mistakes can be made. When the quality of the identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

18.     The rationale was later applied in a number of National and  Supreme Court’s decision such as in Ono v The State (2002) SC 698 where the court said that because of the dangers inherent in the eye witness identification caution should be applied at all times on the correctness of the identification. See also; The State v Anis Noki [1993] PNGLR 426; The State v Kakas & Ors [1994] PNGLR 20 and the Supreme Court decision in Piakali v The State (2004) SC 771. 

19.     In the recent Supreme Court case of Bate v The State (2012) PGSC 46, SC1216 (20th December 2012), the Court in applying the rationale in John Beng (supra) held that; 

“In assessing identification evidence, relevant consideration include, that an honest witness can be mistaken and still be convincing that an identification witness must both be honest and accurate; whether the evidence is corroborated, whether the witness is purporting to identify a person who was a stranger or someone he recognized, the length of time the witness observed the accused (prolonged or fleeting glance), the emotional state of the witness at the time of the incident, the prevailing conditions, the line of sight (did the witness have a clear view of the front or the line of sight interrupted, did the witness just see the accused from the side)”.

20.     The view held is that the Court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.

21.     It is also important, I would think, that other similar questions are also asked to further establish the correctness of the identification, such as for example; ‘How long did the witness have the accused under observation? And at what distance? Under what light? Was the observation impeded or obstructed in anyway, even momentarily, by say, a passing vehicle or a building, or a crowd of people or a bright flashing light or the accused fleeing the scene etc.? Had the witness ever seen the accused before? If so, how often? If only occasionally, had he had any special reason for remembering the accused? How long a time elapsed between the original observation 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 them and his actual appearance’?

F.	PRESENT CASE 

22.     The three State witnesses; Dominador Breis, Jefferson David and Mary Papou in their statements to the police gave detailed accounts of the robbery however, they were not able to positively identify the accused and so in terms of identification their evidence is of little value as they do not contain any incriminating evidence against the accused.  The statement by another witness Rita Kungus does not make any reference to the robbery except to say that the accused bought a bundle of peanut from her and walked towards 7th Street around 4:30pm. Her evidence does not connect the accused to the robbery.

23.    Witnesses Benjamin Philip and Harold Narua in their oral evidence told the Court that they both witnessed the robbery and positively identified the accused by his face and the clothes he was wearing at the time. Witness Demas Michael did not witness the actual robbery but corroborated the evidence of Benjamin Philip and Harold Narua when he gave similar descriptions of the clothes the accused was wearing on day of the robbery. 

24.     Three things, to my mind, stands out in support of the State’s case relating to the identification of the accused:

25.     Firstly, the State’s three witnesses gave similar descriptions of the clothes worn by the accused on the 02nd of October 2014, the day the robbery occurred. The first witness Benjamin Philip told the Court that he saw the accused wearing “a black wool cap, black coat, a red T-shirt and a short jean.”  The second witness Harold Narua also told the Court that the accused was wearing “a wool cap, a black coat, green T-shirt and a blue cut jean” at the time of robbery.  The third witness Demas Michael who is a close friend of the accused (as they both lived on the same street) said the accused was wearing “a blue wool cap, a maroon T-shirt and a cut jean short” when he met him between 6:30pm and 7pm on the 02nd of October, 2014 and they both walked up to the 4th Street. 

26.     The clothes worn by the accused as described by the three witnesses were similar.  The only discrepancy is in relation to the colour of T-shirt and the wool cap worn by the accused.  One witness said it was a red T-shirt, whilst the other said it was a green T-shirt and the last witness said it was a maroon T-shirt.  With respect to the wool cap, one witness said it was black in colour whilst the other said it was a blue wool cap. Colour can be misleading at times depending on what time the observation was made, i.e. during day time or night time. This also includes the distance from which a person was observed. Red and maroon colour look almost identical from a distance and in the dark a maroon colour can easily be mistaken for a red colour and vice versa.  The same could also be said of blue and black colour. In any event, I find no serious inconsistencies or discrepancies in the descriptions of the clothes worn by the accused and so all in all, I am satisfied that the evidence of the three witnesses is sufficiently corroborated. 

27.     Secondly, witnesses Benjamin Philip and Harold Narua told the Court that although it was dark (between 7pm-8pm) they observed the robbery clearly as there were sufficient lightings around the area and they clearly identified the accused as one of those who robbed the Fone haus shop.  There was a big spot light shining from the Big Rooster shop towards the main street (Central Avenue) and there were also lights from the Remington shop (old BSP) and the Fone haus itself.  Furthermore, the distance between them and where the robbery took place was only about 8-10 metres away from where they were sitting.  Furthermore, they clearly recognized the accused when he ran towards the middle of the road with a gun to do the ‘clearing out’ which brought the accused even more closely to within 5 metres from where the two witnesses were sitting. Their observations of the accused was not impeded or obstructed in anyway.  It took about half an hour from the time they first observed the accused during the robbery to the time he was arrested and brought to the police station.  Their memories were still fresh and could not have lapsed within that short period of time. They both positively identified the accused as the gunman who ran towards the middle of the road to do the clearing out.
   
28.     Thirdly, both witnesses told the Court that they knew the accused as they have seen him before on many different occasions and described him as; ‘a familiar face’ around the Top Town area and Melanesian Hotel as he normally frequented these places.  Witness Benjamin Philip also said he has seen the accused previously at the Food Mart and knew that he was living at 7th Street/Hornbill Crescent as he usually sees him there every time he goes to drop off his work colleague who also lives around that area.

29.    I have no doubt in my mind that the two witnesses have positively identified the accused as the gunman involved in the armed robbery on the evening of the 02nd of October 2014.  The description of the clothes the accused was wearing at the time of the robbery was still on his body without the black coat and the wool cap when he was arrested.  It is possible that the accused may have discarded the black coat and the wool cap to disguise his appearance. 

30.     The evidence of identification is further strengthened by the fact that both witnesses have seen the accused in the past on many different occasions in different places within Lae city as alluded to above.  The witnesses no doubt, have sufficient prior knowledge of the accused and therefore, could not have possibly mistaken him for another person.  The circumstantial evidence also supports the conclusion on identification.  I am convinced therefore, that the correctness of the identification of the accused is established beyond doubt.

31.     As for the defence case, the accused in the ROI stated that he was at home the whole day on the 02nd of October 2014 and has no knowledge of the robbery.  He was with six other people mostly his family members on the day the robbery took place.  The accused has not raised any formal defence including the defence of alibi apart from his denial of his involvement contained in the ROI.  The accused exercised his right to remain silent and offered no evidence in his defence hence the prosecution’s evidence on both the positive identification of the accused and the correctness of that identification remains conclusively intact.  

G.	VERDICT

32.     I find the accused guilty as charged and convict him accordingly.

Orders Accordingly.

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