State v Steven [2018] PGNC 476; N7581 (21 November 2018)

N7581

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 648 & 649 OF 2018

THE STATE

V

DONATUS STEVEN & SAMSON PAULUS

Kimbe: Miviri AJ
2018 : 19, 20 &21 November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Trial – store robbery – no issue robbery – identification – identification of known persons – recognition more – false alibi – corroborating identification– accused both identified– guilty of robbery.

Facts
Both accused with a third not before court went to the trade store of the victim held her up with homemade guns and bush knives stole K4100 in cash and goods and escaped.

Held
Good identification
False Alibi
Corroboration of identification
Both accused identified
Guilty of robbery both accused

Cases Cited:
Papua New Guinea Cases

The State v David Kandakason [1998] Supreme Court Judgement SC 558
The State v Hagena [2017] PGSC 55; SC 1659
The State v Jaminan [1983] PNGLR 318
The State v John Beng [1977] PNGLR 115
The State v Palili [2006] PGSC 16; SC848

Overseas Cases

Brown v Dunn- (1893) 6 R 67

Counsel:

D Kuvi, for the State
B Takua, for the Defendant

VERDICT

21^st November, 2018

1. MIVIRI AJ: This is the verdict after trial of the accused who both denied being involved in an armed robbery.
   

Brief Facts

2. Milker Muing was looking after the trade store of her husband Bomase Muing on the 26^th February 2018 at Kabaiya Section 1 Block 1992 Bialla between 6 and 7 0’clock pm. Donatus Steven and Samson Paulus accompanied by one George Steven under pretext of buying goods from the store held up Milker Muing with homemade guns each and bush knives. George Steven pointed the gun to the head of Milker Muing and threatened her with it to not do anything. Donatus Steven and Samson Paulus went into the store and stole K3000 cash in a biscuit box, K300 in cash from Milker Muing’s wallet, and K800 in store goods, altogether valued at K4100 the property of Bomase Muing. When they came out Donatus Steven cut the head of Milker Muing with the knife and said she should not do anything or her stomach will be disembowelled.
   

Charge

3. Accused were indicted with aggravated armed robbery contrary to section 386, which read, “(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to subsection (2), imprisonment for a term no exceeding 14 years.

(2) If a person charged with an offence against subsection (1)—
(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery,

wounds or uses any other personal violence to any person,

he is liable to be sentenced to death.”

Robbery was undisputed, identification was the issue on trial. The law on identification is settled in the case of John Beng v The State [1977] PNGLR 115. The principles are set out as follows;

“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial Judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need to be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made...

Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support; Provided always, however, that an adequate warning has been given about the special need for caution. When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions— the Judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification”

4. This is the law against which the evidence will be tested to see out its veracity against the accused. Both do not have any onus to prove that they are innocent of the allegation. The burden is always with the prosecution and as here it is not for the defence to negative that they were at another location. The defence is no longer of alibi but Brown v Dunn (1893) 6 R 67 requires any assertion against state witnesses to be put to them for them to be given opportunity to rebut or defend.
   

Undisputed Facts

5. Between 6 and 7 0’clock on the 26^th February 2018 a gang of three armed men with homemade guns each and bush knives all dangerous weapons held up Milker Muing wife of Bomase Muing at their trade store at Kabaiya section 1 Block 1992 Bialla. They threatened her with these weapons and in fear she submitted and they stole K3000 in a biscuit box that was stored to pay bride price by Bomase Muing and K300 from the wallet of Milker Muing and K800 worth of store goods. As they came out one of them cut Milker Muing with a knife on her head threatening her that if she called out they would disembowel her when they returned.
   

State evidence

6. Milker Muing was the first witness called on oath. She was from Merap village Nipa, Southern Highlands Province. She was 18 years old and was the wife of Bomase Muing. They lived at section 1 Block 1992 and the store was there. It belonged to her husband Bomase Muing. On the 26^th February 2018 between 6 to 7 0’clock she was serving customers in the store. There were three men who came with knives they had caps and jackets on when they came to the store. I saw three of them, Donatus Steven, Samson Paulus and George Steven. Samson Paulus and Donatus Steven were on either side whilst George Steven was in the middle. He gave K4.00 and wanted 2 snacks biscuits which I gave to him. Then he gave K1.00 for a cigarette that I also gave to him. He took out a gun put a bullet in it and pointed it at me. He told Donatus Steven and Samson Paulus to go into the store. They went into the store Samson Paulus took K3000 from a carton cabin biscuit. It was money for my bride price saved by my husband. Samson Paulus got my wallet with K300 in it. Donatus Steven got up and cut me on my head and took all the takings of the store and goods in the store. They took everything to go out, George Steven said don’t shout if you shout we will shoot you and your stomach contents will be spilled out. The total they took is K4100. The length of the store is 3 meters so too is the width. I serve them on the counter. Donatus Steven and Samson Paulus came through door and K3000 was in the box near the door which they got. Both Donatus Steven and Samson Paulus had a gun each and a knife. It is a bayonet type knife with jiggered edge opposite from the sharp edge.
   
7. The place was not dark it was between 6 0’clock and 7 0’clock and was not dark. There were two bright solar lights on which were connected to a 100 watt battery and I could see people very clearly. George Steven, Samson Paulus and Donatus Steven I could see them clearly. When they are drunk they come to where we are and I used to see them. I stayed there for a long time so see them plenty times prior. And I know them all. They are from Sepik, George Steven is related to Donatus Steven and they live in the same house at section 6C Soi. They live at their blocks adjacent to each other. They wore caps that were not drawn over their faces and I could see them clearly. They stood about 20cm from me over the counter facing me so I could see them clearly. Donatus Steven cut me over the head with his knife. It was a big cut but not deep.
   
8. In cross examination she maintained consistency in her evidence. She did not deviate from her original evidence in chief and maintained it throughout. She was not shaken. She maintained that she recognized all three accused in the store under two solar lights powered by a 100watt battery which was bright and it was also not dark as yet between 6 0’clock and 7 0’ clock and so it was clear to recognize each of the accused at close quarters 20cm in the store. It was suggested that she was angry that they stole from her she agreed truthfully. But maintained forthright that she knew their names all and that when they drank they would come to where they were and she would see them many times before that day. She recognized them and named all as the persons who robbed her on that day.
   
9. She was a very truthful and honest witness. There was nothing in her evidence to doubt her evidence. She was consistent with common sense and logic in the way that she gave her evidence. She was not in court to secure anything against the accused except to tell the truth as best as it occurred to her on that day. And that is what she did the veracity of her evidence was intact. Had it being her evidence alone there would have been nothing against to record a conviction against each of the accused from her evidence. Contrary to defence submission she stood out as a witness of the truth her evidence was un-contradicted firmed with common sense and logic.
   
10. The next state witness was Ruby Charles originally from Morobe 26 years old, a married woman with 5 children residing at Kabaiya section 1. On the 26^th February 2018 at about 6 0’clock to 7 0’clock pm I was walking on the road section 1 Kabaiya to my house. I know the canteen of Bomase Muing. I was walking away from it to my house. Along the way I met George Steven, Donatus Steven, and Samson Paulus on the road. Yes I know them. They greeted me I did likewise and went to my house. They were going in the direction of the store. The store is about where Bialla Secondary is from the witness box a distance of about a kilometre. It was a straight road. I know George Steven, Samson Paulus, and Donatus Steven. They are my husband’s friends and when they come to our house I cook for all of us. They are my boys and stay with me at our house. I have many small brothers in-laws and they used to hang around with them. I have known them for a long time now. In 2007 I got married to them, I know them since so when they greeted me I responded and walked on. The lighting condition was clear it was between 6 0’clock and 7 0’clock pm. I can still recognize them even though they wore caps and jackets. Yes I know they stay at village oil palm Soi section 6C at the Kwasa River. And there is a short cut at Kabaiya we use it to the beach. Where I met the boys to the store is about the same distance from witness box to the main Junction. The boys are all from Sepik.
    
11. In cross examination this witness was a firm witness she was never shaken in her evidence and maintained consistency credibility of her evidence. There was nothing that came out of the cross examination effecting her credibility and the veracity of her evidence. Her evidence was intact she knew the accused all very well and had a relationship with all through her husband and her small brothers in law. She was a truthful witness. There was no motive in her evidence except the truth as it unfolded that day to her. And she re-countered that in full to the court. Accused were heading in the direction of the store she was coming the other way away from it when they met. They wore caps and jacket but she recognized all in the light it was still daylight it was not dark as yet between 6 and 7pm because of her prior association through her husband and brothers in-law. It made perfect sense there was no doubt in her evidence.
    
12. She is a witness of the truth she gave evidence consistent with common sense and logic. There was nothing out of the ordinary to doubt her evidence and its veracity. Her evidence coupled with the principle victim witness together was very strong evidence of identification and the movement of the accused on that day. It was more recognition of known persons than a fleeting glance situation in very difficult lighting conditions. And to ignore their evidence would be parting with reality.
    
13. The next witness for the State was Noah Muing from Raikos Madang 16 years old doing grade 6 at Kabaiya Primary and lived at Kabaiya section 1 Block 1992 with his brother Bomase Muing. On that day 26^th February 2018 between 6 0’clock and 7 0’clock pm he was standing at section 1 and met Charles and Ruby. She went ahead and Charles followed. Seth Male is an inlaw. I asked Charles for Tobacco. Seth and I were heading to section 2 we came past the store of Bomase Muing and we met Donatus Steven, Samson Paulus and George Steven. Samson Paulus asked me for tobacco. They went ahead headed towards the direction of the store of Bomase Muing and we followed and met them at the store standing in the front. They said they will look for cigarette inside the store.
    
14. I used to follow them and sleep at their house so I know them. Their house is at section 6C at side of Soi cross river to other side. I know Donatus Steven when small up to now we live together. And Samson Paulus’ house is on the same block. About 16 years born up to now I know them. The lighting condition the place was clear and bright it was between 6 0’clock and 7 0’clock but bright. The second time I saw them was in front of Bomase Muing’s store. It was still bright light when I saw them outside the store. He points out Donatus Steven and Samson Paulus in the dock in court.
    
15. Again this is a truthful witness he admitted that he was angry at what the accused did to his sister in-law but did not want revenge. He knew each of the accused well they wore caps and jackets but I saw three of them Donatus Steven, Samson Paulus and George Steven at that time. His veracity remained intact there was nothing in cross examination which distorted the truth of his evidence. Together with the evidence of the two earlier witnesses they made out very good evidence on recognition against each of the accused and their movement on that day. There was no problem explicit or apparent or identifiable to avoid this evidence of recognition of known persons by name and face at close quarters of this witness.
    
16. The last witness for the state was Seth Male whose statement was tendered into evidence as exhibit S4 he was with Noah Muing and both met George Steven with two others who had concealed their faces with a cap to him and were wearing Jackets. They were holding very long knives and were heading in the direction of the store of Bomase Muing. They asked for tobacco but Noah replied that it was a small bit and they had smoked it up. They left and headed in the direction of Bomase Muing’s store and when they came they saw them there alongside near the store. He greeted them and they said they were looking to get cigarette from the store of Bomase Muing. Both the witness and Noah Muing went to the block of another one Jimmy Samson where Noah left him and returned.
    
17. Again in cross examination his evidence remained intact and consistent with the statement tendered into evidence as exhibit S4. He knew George Steven and saw him with Noah Muing. And George Steven was accompanied by two others who he did not know their names who had caps and jackets covering them so he did not see them properly nor did he know them by name.
    
18. He was also a witness of the truth and there was nothing to doubt the veracity of his evidence. His credibility was unshaken in cross examination he remained one with the statement that he made to police tendered into evidence. He corroborated the evidence of the earlier witnesses in the way the accused were dressed and holding long sharp knives. He was with Noah Muing corroborating his account. These witnesses were individually placed along the path set out by State exhibit S1 which depicted four blocks parallel to each divided by a road that passed dividing all. Ruby Charles met the accused followed by her husband one Charles Male, then Noah Muing who is accompanied by Seth Male, and then a person called Billy Koki who is met by these two and then the final meeting of Noah Muing accompanied by Seth Male meeting the accused who are 19 meters to the crime scene. It depicts consistency and credibility each witness gives an account of where they are along that way. There is no room to cook up a story to get at the accused as put by the defence because of the continuous mediations. Here also there is no evidence of how it was conducted who was present and what was said in it. It does not establish that the witnesses for the State are schooled in that mediation and therefore tainted to give what they give on oath. It is not the case that the witnesses firmed down on the identity of the accused after the mediation. That is not the evidence and the case here.
    

Defence Case

19. The defence case started on the footing that it was withdrawing a notice of alibi and foregoing it. Leave was granted to withdrew and proceed as instructed. It was their case and it was their choosing as they saw fit to run. It did not prejudice to not grant.
    
20. Accused Donatus Steven gave evidence in his own defence stating that he was from Sepik Woginara 2 Dagua. He lived at Soi section 6 with his father. On the 26^th February 2018 between 6 and 7 0’clock he went fishing with Samson Paulus and his uncle. They fished until 8 0’clock in the night and returned, cooked the fish ate and went to sleep there. They did not go anywhere at all. It was his evidence that he did not know Milker Muing but knew Ruby Charles by face only including Noah Muing and was not seen by these persons on that day 26^th February 2018. He did not know why they were saying that they saw him because he did not know them. He did not have any grudges or personal differences with them. There were mediations that were conducted earlier asking him to settle Bomase Muing but he refused as he was not involved in the crime. There were three times this happened before and he was locked up for the crimes at the Police Station.
    
21. He acknowledged the record of interview state exhibit S2A and S2B that was conducted with Police on the 13^th April 2018. In it at question 15 he stated that he was at the beach at the mouth of the creek called Kuasa and did not go anywhere but he stayed in the house. Basically he maintained that he never ever was out of his house on that day he remained in doors and never met nor talked to any of the witnesses of the state. And after reading the record of interview he signed it. He acknowledged that he participated in it of his own free will.
    
22. In cross examination he was not able to show to the court where in the record of interview he stated that he had gone fishing with his uncle accompanied by Samson Paulus and denied ever going out or of meeting any of the State witnesses. He maintained that he did not know any of them and did not know why they were saying that he was met and that he had committed robbery at the store of Bomase Muing. Under strong cross examination he agreed that the witness Milker Muing would not lie that she was telling the truth but then contradicted by saying that she did not see us. He agreed that Noah Muing would not come to court and lie. He agreed that he sometimes went to section 1 Kabaiya to see his in-laws who were resident there giving opportunity to be seen by the witnesses of the state there.
    
23. In the end he was a witness with little or no credit at all in his evidence. He could not explain nor give credible evidence why complete strangers would pick him out by name location where he stayed how he was dressed on that day. What he said in conversation to them and generally his conduct to them. He could not explain credibly why identification could be made with daylight and also light from two solar lights in a small store 3 meters length by 3 meters width standing at 20cm from the witness. He could not explain why a witness was able clear and concisely to describe what he did on that day nor did he disclose why a complete stranger would make a serious allegation as an armed robbery against him a person never seen in life of that witness ever. He clearly was a witness who had a lot to lose and he was intent on shutting out the evidence that pinned him down. These were not one or two witnesses but four witnesses located individually at their respective locations in life on that day who intermingled with him because he was known to the witnesses and he knew them hence the conversation and the exchange leading to the identification of himself with the others who were with him. Because as the witnesses said he was from Sepik resident at Soi section 6C on the other side near the Kuasa creek. It was not a wild guess to pin out where he lived unless there was prior association and acquaintance.
    
24. His denials fell by the way side, because had it being the truth he would insisted on it, and it would have been recorded in his record of interview, it was fresh and clear at that time, a short time after the allegation. The allegation arose on the 26^th February 2018 he was interviewed in the record of interview on the 13^th April 2018 just about two months yet he did not volunteer his fishing expedition to police. It is now 7 months after the record of interview and from the allegation 9 months and he has not of his own volition opted to rise that he was at a fishing expedition. He of his own volition did not challenge the record of interview it was before the court as evidence of the truth against him from him voluntarily without any excerpts that he was indeed with co accused Samson Paulus fishing on that evening with his uncle. The effect is a belated effect to distance himself from the truth and the guilt imminent from all the state evidence glaring at him. In the haste to create distance he has corroborated the identification of the State witnesses in accordance with the often cited case of Jaminan v The State [1983] PNGLR 318 (29 September 1983) false denials told out of conscious sense of guilt corroborate the account of the State evidence. Both he and co accused are accomplice and must have independent corroborative evidence to strengthened their case lacking seriously here: Hagena v The State [2017] PGSC 55; SC 1659 (11 December 2017)
    
25. The law has been clearly stated in David Kandakason v The State [1998] Supreme Court Judgement SC 558 where the Supreme Court said that where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the court must regard and treat that evidence as unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence, upon which the Judge can act. In other words both the sworn testimony of the Witness, and his statement given out of court are discredited and both are no longer reliable evidence, Palili v The State [2006] PGSC 16; SC848 (31 August 2006). That is the status of the evidence and the defence of this witness and accordingly he has no ring of truth in his defence and it fails from under him leaving him bare and dry with the evidence of the State witnesses against him.
    
26. Accused Samson Paulus gave evidence in defence that he was from Sepik related to Donatus Steven who was his uncle and he lived with him. He was a primary school student at Soi Primary School and recalls the 26^th February 2018 between 6 and 7 0’clock pm he was in his house. And was with his grandfather and Uncle Donatus Steven. They were at the house when Andrew Makis came and they all went fishing and returned home with a lot of fish at 8 0’clock pm and cooked the fish ate and went to sleep there. He said the robbery on the 26^th February 2018 he was not there and never committed it as alleged by the State witnesses. He said they were taken to mediation three times by Bomase Muing with his relatives but each time they denied and said they will not settle because they were never involved nor did they commit the offence. On the third occasion that was when police locked them up for it.
    
27. Like his co accused he also denied that he knew any of the State witnesses. He did not know Milker Muing and where she stayed. She denied ever knowing Ruby Charles or Noah Muing ever. These from his evidence were complete strangers unknown to him who picked him out as one of the persons they met conversed inter related and acted with on that day the 26^th February 2018. It was departing with reality common sense and logic for him to contend that there was never any link with the witnesses for their evidence to come into contact with him on that day at different settings each witness occupied on that day. There was no room to cook up a story against him by the State witnesses. Why would complete strangers pick out a complete stranger by name residence and location at a locality and pin down such as person with a serious allegation drawing the death penalty. There was no evidence of motive to dispel neither their evidences nor their veracity. It was clearly yet another case of a desperate attempt to disassociate at evidence glaring bearing out guilt in a very serious criminal offence of aggravated robbery against the accused. His continued lies without any basis either in evidence common sense and logic left with no shred of evidence to cover his case so as to make out any dent reasonable doubt on the case of the prosecution. Like his co accused his defiant lies added salt to the wounds in his case so much more so that there was little or nothing left to fend him out of the truth by evidence that secured of guilt of armed robbery. The principles of law in John Jaminan’s case, (supra); David Kandakason; and Palili (supra) sealed in law leaving nothing but his guilt of aggravated armed robbery committed on the 26^th February 2018 against Milker Muing beyond all reasonable doubt. His own record of interview State exhibit S3A and S3B sealed his demise like his co accused there was nothing in it of assistance to further his case. There was no evidence there of the fishing expedition with the uncle. He read accepted its contents as his and signed acknowledging.
    
28. It could not be argued that each accused corroborated the other because that is not the law: Hagena’s case (supra). The consequence swayed in law is the evidence and the case of the both accused is rejected as without any basis in law given the discussion set out above. That leaves only the state evidence before the court returning that Donatus Steven, Samson Paulus and George Steven were the persons who robbed Milker Muing on 26^th February 2018 between 6 0’clock and 7 0’clock pm at Kabaiya section 1 Block 1992. They were in company they aided and abetted each other in the robbery. They were armed with dangerous and offensive weapons knives and homemade guns that they used to threaten Milker Muing who submitted and they stole cash and goods to the total of K4100 the property of Bomase Muing.
    
29. The verdict of the court is guilty of aggravated armed robbery pursuant to Section 386 against the accused Donatus Steven and Samson Paulus, both of Woginara No. 2 Dagua East Sepik Province committed on the 26^th February, 2018 against Milker Muing at Kabaiya section 1 Block 1992 where K4100 cash and goods were stolen off her property of her husband Bomase Muing.
    

Orders Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant