State v Leo [2022] PGNC 80; N9469 (18 February 2022)

N9469

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1174 OF 2020

THE STATE

V

TOVUE LEO

Kokopo: Tusais AJ
2021: 13^th, 21^st, 30^th September
2022: 18^th February

CRIMINAL LAW – Trial - Verdict– Aggravated robbery section 386 (1) & (2) (a)(c) Criminal Code Act—Identification – Voice recognition – Quality of identification evidence poor and doubtful – Not safe to convict - Acquitted.

Held

1. Accused raised alibi as a defence. Said he was in Kimbe since December 2014. Accused did not call the two witnesses named on the Notice of Alibi. Prosecution witnesses in direct evidence gave convincing evidence proving that accused was around the area at least a week before the date robbery took place. Defence not made out.
   
2. Evidence of identification only by voice recognition because Robber was masked at the time and place was dark. State-v- Daniel [1988-89] PNGLR 580 referred to.
   
3. No distinctive qualities of accused voice. Same as his twin brother. Reasonable doubt raised. Accused acquitted.
   

Cases Cited

John Jaminan v The State (No.2) [1983] PNGLR 318.
John Beng -v- The State [1977] PNGLR 115.
The State -v- Marety Ame Gaidi (2002) N2256
State-v- Daniel [1988-89] PNGLR 580

Counsel

Ms Batil, for the State
Ms Pulapula, for the Accused

DECISION ON VERDICT

18^th February, 2022

1. TUSAIS AJ: On 13^th September 2021 the state presented an Indictment against the accused charging him with one count of aggravated robbery contrary to s. 386 (1) (2) (a) & (c) of the Criminal Code Act, Ch. 262 (the Code). He pleaded not guilty and a trial was run. This is the courts decision on verdict.
   
2. Prosecution alleged that between 6 pm and 7pm on the 17^th of November 2015, the accused Tovue Leo went to the Klinwara Plantation Store located at Kamanakam village, Gazelle District, East New Britain Province. The accused used a home-made gun to hold up three shop assistants of Klinwara Plantation Store when they closed up for the day. He fired a warning shot and stole K5000 cash money, two eftpos machines, one tablet phone and a bunch of keys before running away.
   
3. It is not in disputed that a robbery occurred on the day and time stated and that money and other property were taken by force and threats of violence. It is also not disputed that a homemade gun was used and two shots were fired from that firearm.
   
4. What is in dispute and is at issue in this case is the identity of the robber. The accused also raised alibi defence although he never did call any of his witnesses. Court has to determine if the alibi is satisfactorily made out. If alibi is a false one, whether it strengthens the state’s case, John Jaminan v The State (No.2) [1983] PNGLR 318.
   
5. The prosecution called three witnesses and tendered four documents by consent. Those documents are as follows.
   
   • (i) Record of Interview of accused dated the 3^rd August 2020 – Pidgin marked as State Exhibit 1 A
     
   • (ii) Record of Interview of accused dated the 3^rd august 2020 – English version marked Exhibit 1 B
     
   • (iii) Statement of Arresting Police Officer Toby Maki dated 3^rd August 2020 marked as Exhibit 2
     
   • (iv) Statement of corroborator Police Constable Iga Kamutap date 3^rd August 2020 marked as State Exhibit 3.
     
6. The first state witness was Vero Waima. She was the one carrying the bag with the money and other property inside. She had just closed the store and went outside with her co-workers, Stalita and Raphael. It was evening and already getting dark. A man ran toward them and pointed a gun at them. He called out “hold up, hold up”. Stalita thought it was one of her relatives kidding around and told the person to stick the gun up his anus. The robber fired a warning shot and asked where the money was. He saw Vero holding the bag and fired a second shot near her leg. This caused her to let go of the bag. The robber got the money bag and as he was heading off, Raphael recognised him and called out saying “Tovue, stop doing this, we are same people”. In response the accused swore at Raphael and warned him not to go closer or he would shoot him. He then ran off into the night.
   
7. This witness told the court that she knew accused well because they had grown up together. She said she did not recognise the man initially because it was getting dark and the robber was wearing a mask. When Raphael called out his name and Tovue responded, she was able to identify him through his voice. She said Tovue often harassed mothers and children and got cross to people so she knew his voice.
   
8. Later during cross examination she admitted that Tovue did have a twin brother. She agreed that the twin brothers both had the same build and spoke the same. She said it was after 6 pm and getting dark. Because the man was wearing a mask she could not identify him. It was only after Raphael called out his name that she recognised Tovue through his voice as he spoke. The following questions and answers were exchanged
   
   • Q. You know accused brother as well as you know Tovue Leo?
   • A. Yes
   • Q. Would you be able to distinguish their voices?
   • A. They both speak the same
   • Ct. Q. Can you differentiate between Sammy Leo and Tovue Leo?
   • A. No
   • Q. Same height and built?
   • A. Yes
     
9. Witness Stalitha Raphael gave similar evidence as Vero Waima. She said between 6 and 7 pm they closed up shop and were standing outside when Tovue ran to them and called out “hold up, hold up”. She thought he was one of the boys from her house. After Raphael called out his name, she was able to identify him by voice as he swore at Raphael and threatened to shoot him if he went near him. She admitted that Tovue had a twin brother named Sammy who was alive then but had been killed since by his own uncle “because of his troublesome ways.” She said that she could not differentiate their voices.
   
10. The third and final witness was a man named Jackson Kahau. He is the Assistant manager of Klinwara plantation and has been working there for 12 years. He gave sworn evidence that on the 17^th November 2017 he was inside the store and went out with the workers when they closed up. Tovue went and held them up. He could not tell whether he was carrying a factory made or homemade gun. The witness recognised him and thought that he was playing up with them.
    
11. Asked how he recognised him he said he knew Tovue well as Tovue lived close by with his family on the edge of the plantation. He said he clearly heard his voice although he could not recognise his facial features because the robber was masked and it was now dark. Mr Kahau also knew Tovue’s twin brother. He described them as similar in build but one was darker skinned and taller than the other. Crucially he was asked about their voices. I refer to the following questions and answers by State Prosecutor.
    

“Q. You able to differentiate between them?

A. They look different. Tovue is short. Sammy is taller than him.

Q. What about their voices?

A. Almost the same.

Q. What would be the difference between them?

A. Sammy when he talk, straight. Tovue when he talks ‘pulim toktok liklik’.

Q. What mean ‘ pulim toktok liklik’ ?

A. His tongue is short. Maybe when he talks his tongue is short. He stutters a bit and Struggles to get the words out.”

12. The accused gave evidence after state closed its case. He raised defence of alibi. Defence had given very late Notice of this alibi defence on the day of the trial. State prosecutor consented to him giving evidence but said she would ask for adjournment after he finished in order to check and verify alibi and call rebuttal evidence if possible. It showed counsel’s competence, maturity and confidence in herself to take this course of action instead of asking straight away for adjournment. This turned out to be unnecessary as the named alibi witnesses never turned up in court. I will not set out the accused evidence in any detail. He said he was in Kimbe at the time of the offence. I do not believe his alibi evidence because he did not call his witnesses to verify his evidence.
    
13. I agree with Ms Batil’s submission that a defence of alibi can only arise if there is some evidence as opposed to speculation in support thereof; as a defence it puts every matter in issue and if the evidence creates a reasonable doubt in the mind of the trial judge and the accused should be acquitted: John Jaminan v The State (No.2) [1983] PNGLR 318. I also believed the state witnesses evidence that they had seen the accused around the area in that period.
    
14. But does his false alibi strengthen the states case? I referred to the series of questions and answers at length because I had already started to entertain some doubt in my mind about the correct identification of the accused. Both counsels correctly referred the court to the case authority in our jurisdiction on the law relating to identification evidence, John Beng -v- The State (1977) PNGLR 115. The Supreme court in that case said:
    

“In Proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witness could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that 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 evidence 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.”

15. Kandakasi J (as he then was) in The State -v- Marety Ame Gaidi (2002) N2256 usefully summarised the principles involved in identification evidence:
    
    1. It has been long recognized that there are dangers inherent in eyewitness identification evidence.
    2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case of the special need for caution before convicting in reliance on the correctness of identification because for example: (a) a convincing witness may be mistaken, or (b) a number of witnesses could be mistaken.
    100. Provided such a warning is given, no particular form of word need be used.
    4. There should be a specific direction to closely examine the circumstances in which the identification was made.
    5. Identification by recognition maybe reliable but one needs to be cautioned because there can be mistakes in trying to identify close relatives and friends.
    6. All these go to the quality of evidence. If however, the quality of evidence is bad, he identification will be bad.
    7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
    8. There should be an acquittal if the quality of the evidence is bad.”
       
16. The prosecution always bears the burden of proving any offence beyond a reasonable doubt. For robbery under section 386 (1)& (2) there are five elements:
    
    1. A person
    2. Whilst armed with dangerous or offensive weapon
    3. Stole
    4. Property belonging to another person
    5. With use of actual violence and / or threats to use personal violence against another person.
       
17. The issue in this case after I dismissed the alibi evidence of the accused remains whether there was correct identification evidence and it is safe for the court to convict on.
    

Defence lawyers submissions

18. Ms Pulapula submitted that the evidence of identification was not safe. She cited John Bengs case and referred to State v Gaidi and the principles set out in both cases. Counsel submitted that the state witnesses evidence was not consistent.
    

State submissions

19. Ms Batil submitted that the evidence of identification was strong and reliable. It was argued that all the witnesses knew the accused very well as they all lived in the same area. Counsel referred to the case of State-v- Daniel [1988-89] PNGLR 580. Doherty AJ (as she then was) stated that evidence of identification through recognition of persons voice was as good as visual identification. The Judge in that case dismissed objections raised by the defence lawyer to the admissibility of the witness’ evidence identifying the defendant through a telephone conversation. In admitting the evidence of voice identification of the defendant, the court said that in voice identifications there are two groups:
    
    1. First the witness knows the accused voice very well and can easily recognize it.
    2. Secondly even if the witness has not previously known the accused the recognition of the voice is done because the voice has such distinctive features that it leaves a clear mental impression in the mind of the witness enabling the conclusion to be drawn that they are the same.
       

ASSESSMENT OF EVIDENCE

20. I found all the State witnesses to be credible and very honest witnesses. They all did not evade any questions and in fact agreed with the defence lawyer to a lot of things she put to them. However, there is inconsistency especially between the evidence of the two shop assistants Vero Waima and Stalitha Raphael with the evidence of Jackson Kahau. Both ladies said that they was no real difference between the two twin brothers Sammy and Leo Tovue in build and voice. There was only some difference in their skin colours.
    
21. Witness Jackson Kahau said there was difference in height between the two twins. Also and most importantly for this case, that their voices although about the same was distinguishable because Leo the accused dragged his voice or had difficulty articulating. In tok pisin the witness said the accused tongue was short so “em pulim toktok liklik”. This is the condition or disability referred to as stuttering. That is why when the accused gave evidence, I paid very close attention. Not only to correctly hear what he said in evidence but also to hear if he stuttered in his speech. The accused gave evidence for some time. I heard no stuttering while he spoke..
    
22. That is why I have some doubt about whether the witnesses correctly identified the accused Leo Tovue. Evidence shows that the the twin brother Sammy was also in the area. Sammy also had a bad reputation as a trouble maker and was killed by his own uncle after this robbery, because he was bringing problems to the family through his troubles. This was from the evidence of Salitha Raphael.
    
23. The state always bears the onus of proving its case. I find that the prosecution has not proven its case beyond a reasonable doubt and find the accused not guilty. The accused is acquitted of the charge of robbery and unless he has other pending charges or is currently serving sentence, I order that to be discharged forthwith from Kerevat jail.
    

Verdict accordingly.
________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused