State v Mauwe [1999] PNGLR 495 (3 June 1999)

[1999] PNGLR 495

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

LASI MAUWE AND MAKI ONOPIKA

GOROKA: KIRRIWOM J
17, 19 May; 3 June 1999

Facts

The accuseds were both jointly charged with armed robbery. They were alleged to have robbed one Anua Timbilio, a PMV owner and his passengers and crew by stealing from them with actual violence K240 in cash and other personal items.

The State case was that on the night of 22 May 1998 about 10:00 pm Anua Timbilio and some people were travelling home from Goroka in his Toyota Hiace bus when they were stopped on the road near Bena Bridge by a group of men, some of whom were masked. Two of them, one holding a homemade shotgun, were not masked. These two approached the crew and the driver/owner and demanded for money. After collecting the money and a pair of stockman shoes they escaped into the darkness. It is alleged that these two men were the two accused now before the Court.

Both men denied the charge. Consequently a trial was run. The issue in the trial centred on identification.

Held

1. Is the identification evidence tendered by the State strong and believable for the Court to rely on, bearing in mind the circumstances under which, and the time it was alleged that this incident took place? The Court must weigh up all the evidence critically before relying on this identification evidence: John Beng v The State [1977] PNGLR 175 and Biwa Geta v The State [1988-89] PNGLR 153 applied.
   
2. His Honour was satisfied beyond reasonable doubt on strong and uncontradicted evidence before him that these two accused were amongst a group of youth who held up Anua Timbilio on the hill after Bena bridge on the night of 22nd May 1998 whilst armed with a home-made shot-gun and bush-knives and stole from him and others K240 and other personal properties.
   
3. Both accused were found guilty as charged.
   

Papua New Guinea cases cited

Biwa Geta v The State [1988-89] PNGLR 153.

John Beng v The State [1977] PNGLR 175.

Counsel

Ms Johnson, for the State.
Mr Apie’e, for the accused.

3 June 1999

KIRRIWOM J. The accused Lasi Mauwe and Maki Onopika are both jointly charged with armed robbery. They are alleged to have robbed one Anua Timbilio, a PMV owner and his passengers and crew by stealing from them with actual violence K240 in cash and other personal items. The State case was that on the night of 22nd May 1998 about 10:00 pm Anua Timbilio and some people were travelling home from Goroka in his Toyota Hiace bus when they were stopped on the road near Bena Bridge by a group of men, some of whom were masked. Two of them, one holding a homemade shotgun, were not masked. These two approached the crew and the driver/owner and demanded for money. After collecting the money and a pair of stockman shoes they escaped into the darkness. It is alleged that these two men were the two accused now before the Court.

Both men denied the charge. Consequently a trial was run. The issue in the trial centred on identification. To prove its case the State called three witnesses: Anua Timbilio (driver and owner of the PMV bus), Max Auma (the crew or off-sider) and Simion Zopeso, one of Anua Timbilio’s relatives or boys. The records of interview of both accused were admitted into evidence by consent as well as their section 96 statements. I will revert to what each of them says in his statement later when I analyse their evidence.

The State case is centred on the sightings of these two accused at various locations between 10:00 pm on the night of 22nd May 1998 and 2:00 to 5:00 am at Susi’s club just outside Goroka town and their subsequent apprehension at Katagu village, Bena. Anua Timbilio is quite firm in his evidence that he saw the accused Lasi Mauwe that night as he walked from the front of the bus towards them and he was armed with the home-made shot-gun. He came to the driver’s side and demanded money from him and he gave him his wallet with the money inside. Not only that he was able to see him from the car lights in front as he and the others approached but also when he was beside him talking to him at the driver’s side. He said he was able to see him clearly despite the fact that it was nighttime and that there were no other lights around except the car headlights in front. Max Auma who was the crewman gave almost the same story about the accused Maki Onopika. He said it was Maki who walked over to the crew side and demanded money from him and pushed his hand into his pocket. He grabbed K60 from his shirt pocket and pulled out his pair of Dunlop shoes. He said there was enough light reflecting back from the headlights thus illuminating the side where the accused Maki Onopika stood and he could see his face clearly. He said he saw both their faces as they hurried towards the car from the front of the vehicle. This story about the accused moving towards the car from the front would be correct and consistent with the evidence of the driver and the crew. The driver, upon realising the danger ahead when the men blocked the road on the top of the climb, he stepped on the clutch and released the brake slightly and allowed the vehicle to move backwards down the slope. This was when the armed men also moved towards the vehicle. And it may very well be true that the two men referred to by the driver and the crew were not masked because there was a Toyota Landcruiser that came after the bus which was waved on by the armed men to over-take the bus.

The same two men were also seen at the scene of the robbery by Simion Zopeso. He was a passenger sitting two seats away or behind the driver inside the bus and he had ample opportunity to observe their faces as they rushed towards the bus from the vehicle’s headlights. Whilst this witness’s ability to make a clear observation without any impediment particularly bearing in mind his location inside the bus maybe questionable, his evidence of seeing the two men is further enhanced by his subsequent sighting of the same two faces at Susi’s Club later that night. He and a few other boys were dropped off with some girls from their village at Susi Club by Anua Timbilio that same night. There was a dance at the club and they had a dual mission. Whilst they had their fun, they were also to keep a lookout for the robbers should they surface there. And they did get there. At the club they caused more trouble by fighting with the witness and his friends and they abducted the girls they came with and pack-raped them. Witness Simion Zopero also saw the same gunman he saw at Bena Bridge at Susi club and he still had the homemade gun concealed inside a blanket-type shirt he was wearing. He recognized that face as the same face he saw several hours ago at the Bena Bridge where they were robbed and he was the man with the gun. The State case to a large extent hinged very much on this witness’s testimony. Not only did he identify the gunman at Susi’s club but also he and his followers pursued them as they escaped in the early hours of the morning by taking a short cut to their village of Katagu. After he was satisfied that the boys were from Katagu he returned to the main road at Susi club where he was subsequently picked up. The word then got around very quickly.

The same morning people from Avani accompanied by Police from Goroka stormed the village of Katagu where the two accused now before the Court were apprehended in their houses. It was between 10 to 11 am and both were still fast asleep at the time they were cornered. Inside Lasi Mauwe’s house was a homemade shotgun, which was confiscated by the raiders and inside Maki Onopika’s house, also was a pair of Dunlop shoes, which the crewman recognized as the one stolen from his feet. Also inside his house was the avian girl kidnapped from Susie club. In this Court neither the gun nor the Dunlop shoes were produced as evidence. State counsel has a duty to enquire before the start of a trial whether any exhibits in the trial are available for their production. If they are not, there must be reasons for their unavailability and the Court has the right to be informed (if required). Apart from these remarks, I do not hold any negative view of the evidence given as to its veracity. Another crucial evidence of the witness Simian Zopero is in relation to the business cards that he found on the bush-track leading to Katagu. Those were the business cards that were inside Anua Timblio’s wallet that was removed from him at the time of robbery, which he identified during his evidence in Court.

Both accused gave unsworn statements. Unsworn statements are not evidence per se tested in cross-examination and they do not carry the same weight as evidence given on oath. Both accused denied being at the scene of the robbery but conceded to being at Susi Club, arriving there at different times. Lasi Mauwe proceeded to Susi club from Faniufa while Maki Onopika came much later from the village in the early hours of the morning. That is when he stumbled onto the scene of a girl being pack-raped near Susi Club and he rescued her by chasing away the people involved, some of whom he recognized and named, and he took the girl home to Katagu. The accused Lasi Mauwe said he returned to the village via the main Bena road in a teacher’s car. Then they went onto tell the story about the raid and the assault by the Avani villagers estimated to be over 200 of them and subsequently being handed over to the police.

On this evidence before me I have to be satisfied beyond reasonable doubt that these two accused are guilty of this alleged armed robbery at Bena Bridge Mountain on the night of 22nd May 1998. In other words is the identification evidence tendered by the State strong and believable for the Court to rely on it bearing in mind the circumstances under which and the time it was alleged that this incident took place? This is an appropriate case where the warning sounded in John Beng v The State [1977] PNGLR 175 and subsequently discussed in Biwa Geta v The State [1988-89] PNGLR 153 are borne in mind because the witnesses here are identifying two strangers whom they have not seen or spoken to before. It is therefore crucial for the Court to weigh up all the evidence quite critically before relying on this identification evidence.

I have studied the evidence before me and I have no difficulty in arriving at a verdict. As I said earlier, the State case hinged heavily on Simion Zopeso’s evidence. This is the evidence that provided the link between the initial sighting and observation made at Bena Bridge and the subsequent apprehension and arrest at Katagu. Without this ‘link’ the question of being satisfied beyond a reasonable doubt would have thrown the case in favour of the accused. But in this case I am satisfied with the evidence of Simion Zopeso that these two men were the same two men he saw with others at Bena bridge and later at Susi club some hours later and at Katagu village the next morning. This is not a mistaken identity case. The fact that the business cards were found dropped on the bush track as these accused and their friends returned home is clear evidence inferentially that the Katagu boys robbed Anua Timbilio. And the fact that the Avani girl was found at Katagu village by her people and her captor was Maki Onopika proves beyond reasonable doubt that this accused was at Susi Club with his friends that night. This proof adds credibility to Simion Zopeso’s evidence of his identification of the two accused persons and subsequent location of the business cards. I accept Simion Zopeso’s evidence and I accept that he was telling the truth.

The State case in whole remains uncontroverted by other evidence. Defence chose not to give sworn evidence but opted for unsworn statement, which is their right and permissable under the existing law on practice and procedure. I do not accept their explanation. As far as I am concerned they were not telling the truth. In their section 96 statements, which were given on oath, they admitted being at Susi club. However when the raid came they thought the relatives of the girl they had abducted and brought home to Katagu had come to her rescue. But this story can hardly stand against sworn evidence, which is quite overwhelming against the two accused.

All in all I am satisfied beyond reasonable doubt on strong and uncontradicted evidence before me that these two accused were amongst a group of youth who held up Anua Timbilio on the hill after Bena bridge on the night of 22nd May 1998 whilst armed with a home-made shot-gun and bush-knives and stole from him and others K240 and other personal properties and I therefore find them both guilty as charged.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitors.