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State v Kales [2001] PGNC 87; N2115 (12 April 2001)

N2115
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 107 OF 1998

THE STATE

v.

HENRY OSARE KALES

LAE: KIRRIWOM, J
2001: 11 & 12 April

Cases cited:
The State v Paul Kundi Rape [1976] PNGLR 96
John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153.
Kevin Mariano v The State SCRA 71/2000 – Unreported Supreme Court Judgment March 2001

Counsel:
Mr Miviri for the State
Mr Siminji for the Accused

April 11, 2001

RULING ON NO CASE TO ANSWER SUBMISSION

KIRRIWOM, J. The accused pleaded not guilty to a charge of armed robbery of the Lae Post Office. The alleged offence took place on 6th September, 1997 in which a sum

of K2000 in cash was stolen from a postal worker Siliving Monduai. The accused was alleged to be with three other persons armed with a flare gun and a pistol.

The State called one witness. He is Siliving Monduai the officer on duty at the time of robbery. His evidence is that between 10 am and 12 noon four youths walked into the Post Office. He walked to the counter to serve them. He knew one of the boys and he referred to him as the son of a policeman. He said as they entered the policeman’s son pointed a gun at him and commanded him to remain still while they checked the drawers and helped themselves to the money and then ordered him to open the safe which he did. They also helped themselves to the money in the safe and then they fled. They were armed with a pistol and a flare gun. He said he knew the policeman’s son because they live next door to him at Salamander Street. The other three boys he could only recognise them by face as the boys who live near the Papua Compound. He said one was from Popondetta, one from Sepik and another from Madang. The accused in this trial he said was from Sepik.

The accused’s record of interview was admitted into evidence by consent. There are no admissions. The statements from the arresting officer and the corroborator were also admitted into evidence by consent. Their statements are self-serving and do not add anything to improve the State case.

The issue before the court is identification. The only evidence of identification is from Siliving Monduai. He said he saw this accused with his friends at the time of the robbery in broad daylight and they are the same boys he sees them living near the Papua compound.

At the close of prosecution case defence made a no-case to answer submission. Defence relies on the second leg of the principle on no-case as set out in The State v Paul Kundi Rape [1976] PNGLR 96 which states that:

"at the close of the prosecution case a question may arise as to whether the matter should be withdrawn from the jury or whether there is sufficient evidence on which a reasonable jury ought to convict which involves an inquiry into whether the evidence is so insufficient that the accused ought not to be called upon to answer it."

It is submitted that the identification evidence is unreliable and is lacking in weight that the accused ought not to be called upon to answer it. Whether the evidence is reliable and how much of it must be believed involves the question of weighing up of evidence which is the role of the tribunal of fact after all the evidence in the case is before it. The question that I have to be convinced of is whether the evidence is so insufficient that the accused ought not, as a matter of law, be called upon to answer the charge against him. The defence further submits that the evidence is so insufficient for me to call upon the accused to answer.

While I have no reason to doubt the evidence of the only State witness Siliving Monduai in his identification of this accused. I am however reminded by the warning given in John Beng v The State [1977] PNGLR 115 for the court to exercise extreme caution in relying solely on identification evidence. This is one such case where evidence is based solely on one person’s identification of another whom his only knowledge of is a face among other faces he has seen in a particular location from time to time and then recognizing him at the time of this robbery at the Post Office. The caution that I have to remind myself of is that even recognition of someone whom one thinks he knows from previous sighting elsewhere can be mistaken. I distinguish this case with that of Biwa Geta v The State [1988-89] PNGLR 153. The facts are not entirely the same as in this case. I accept the State’s submission that this is not a case of a fleeting glance or observation made at night under difficult circumstances or where lighting is poor. I also bear in mind that it is not a legal requirement that there must be corroboration of identification before any weight can be attached to such evidence. See Kevin Mariano v The State SCRA 71/2000 – Unreported Supreme Court Judgment March 2001. Each case is decided on its own merits.

I am however concerned that this identification evidence stands alone. It has not found any sound basis or support in that the court is being asked to accept this sole witness’s evidence as conclusive proof of this accused’s identification as one of the four suspects he saw. His evidence is not focused on this one particular person. He is talking about one suspect, a policeman’s son who lives close to him and three other suspects who live near the Papua compound. He never spoke to them before as he had no reason to which could only mean that his first time to see them at close range was when they held him up at the Post Office. Already he made a fatal mistake in his evidence when he identified this accused as being from Sepik in his evidence in chief. The indictment states that he is from Madang. If he can make this simple mistake by a person’s appearance there is no guarantee that he is not mistaken about this accused being one of the suspects he saw involved in that robbery. According to the line of questions asked by the policeman conducting the record of interview, another accomplice implicates the accused in this robbery. But the law is quite clear. Admissions made in a record of interview made by one co accused in a multiple trial implicating other co accused is not evidence against that other accused. I make mention of this because this method of conducting interviews like cross-examining a witness is becoming a prevalent practice and I must sound a caution that this is not a proper method of conducting interviews with suspects. The accused on the other hand in the interview was quite adamant that he was not involved in this crime.

I am also concerned about the method of identification of this accused after the crime was reported. I have no evidence of his apprehension and how he was apprehended and brought before the court. If the State considered this evidence to be insignificant and expected the accused to give evidence to bridge this hole in its case, it is terribly mistaken. There is no onus on the accused to do that. I have no idea as to how this accused was arrested and when he was arrested.

I do not place much weight on the evidence of identification made at the NBC by the sole eyewitness Siliving Monduai when the police delivered this accused to him. That to me

is not a fair method of identification. This type of identification must be connected with some evidence of earlier description of this accused previously given which then led to the arrest of the suspect going by that description which happened to be this accused. There is no such evidence before me. This is a case where the police picked up this person from somewhere and took him to Siliving Monduai and he pointed him out as one of the suspects in the robbery. It is therefore arguable that the only time he identified this accused as a perpetrator of this robbery is when the police delivered this accused to him and he pointed him out, just to have someone carry the blame for what happened probably because he looked just like one of them or he was just as good as the real culprit. If this supporting evidence is not going to be available, the only reliable evidence of identification of strangers that a witness has never spoken to but at least seen elsewhere before the alleged trouble is by conducting a proper police identification parade. That was not done in this case. With these holes in the evidence of the only State witness, I do not think I can or should allow the case to go further as I do not think the State case can improve unless of course if the accused chooses to give evidence and tells an extraordinary story that elevates the State case to a stronger position to compel me to change my mind about the evidence as it stands before the court.

In the circumstances I uphold the application for no case to answer and I find the accused not guilty and acquit him of this charge. Subject to any other outstanding warrants of commitment for this accused, he is entitled to be discharged on this indictment.
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Lawyer for the State: Public Prosecutor

Lawyer for the Defence: Public Solicitor