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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 204 of 2001
THE STATE
CHEROBIM KANI PESO
WEWAK: KANDAKASI, J.
2003: 5th, 11th and 13th June
CRIMINAL LAW - Armed robbery – Identification only issue for trial – Witness recognizing known person - Witness coming face to face with accused - Broad day light – Accused not masked –No reason to falsely testify against accused – Circumstantial evidence including clothes worn by accused support accused involvement in the robbery – Need to warn of the apparent dangers of purported identification - Court satisfied that the accused was positively identified as person involved in the robbery – Guilty verdict returned - Criminal Code ss.386.
Papua New Guinea Cases Cited:
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
John Jaminan v. The State (No.2) [1983] PNGLR 318.
John Beng v. The State [1977] PNGLR 115.
The State v. Raphael Kimba Aki (26/01/01) N2039.
The State v. Fabian Kenny (16/05/02) N2237.
The State v. Jamie Campbell Fereka (07/04/03) N2359.
State v. Lucas Yovura (02/05/03) CR 2002 of 2000 (judgement yet to be numbered).
The State v. Edward Toude & Ors, (18/10/01) (No. 2) N2299.
The State v. Vincent Malara (20/02/02) N2188.
Gimble v. The State [1988-89] PNGLR 27.
Tau Jim Anis v. The State SC642.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
Overseas Cases Cited:
Browne v Dunn (1893) 6 R 67 (HL).
Counsel:
Mr. P. Kaluwin for the State
Mr. G. Korei for the Accused
13th June, 2003
KANDAKASI J: You pleaded not guilty to a charge of armed robbery under s. 386 (1) and (2) of the Criminal Code which occurred here in Wewak on the 30th of August 2000. The robbery was committed against Ruth Benny, who lost a sum of K1, 500.00 to the robbers.
You claim that you were not involved in the robbery. The only issue therefore as confirmed by both counsels during pre-trial and again at the outset of the trial was identification. In other words, the basis for the trial in this matter is whether you were the robber or was one of them involved in the robbery?
The State called Ruth Benny, one of the victims and Sergeant Patrick Wallace in a bid to establish the charge against you. On your part, you took the oath and gave a sworn testimony in your defence. The State witnesses testified essentially that they both knew you, prior to the robbery and clearly identified you as one of the persons involved in the robbery. Your testimony is that you were at the Boram Hospital and were thus not involved in the robbery.
A decision on your guilt or innocence is hence depended on which side’s evidence I accept. That decision can only be arrived at after carefully considering the accounts of each of the witness’s evidence, testing that against logic and commonsense and their demeanour in the witness box. Accordingly, I will now proceed to state and consider each of the witness’s evidence and decide whether to accept or not to accept their evidence.
First State Witness – Ruth Benny
I start that process with a consideration of the State’s first witness, Ruth Benny. She is one of the victims of the robbery. She came to Wewak in 1985 and has been living in Wewak up to this day. Her husband comes from this province too. She states that, she knows you and your family very well. Your mother, Agatha, the witness says, is a very good friend of hers. They used to share things such as foodstuff together. You confirmed her friendship with your mother based on your mother telling you about it. She clearly identified you in Court by pointing her finger at you in the accused box.
She also said because she knows you and your family well, her family would also know you and your family.
After the robbery, she says, your mother stopped talking to her or had anything to do with her until November 2001, when she approached the witness and asked her to give you and them some time to find the K1,500 and repay her in exchange for her dropping the case against you. But she told your mother, the matter had already been to the committal court and that you were committed to stand trial before the National Court. So she told her to speak to the Police with her proposal. Since that time, the witness says she has not seen your mother until now and identified her in Court sitting next to the accused box.
The rest of her evidence is this. On Monday the 28th of August 2000, you went to her coca buying business establishment under the name, PNG Cocoa International with some of your relatives who went there to sell their cocoa. She paid your relatives for their cocoa. After that, you and your relatives went out. Whilst outside, you talked with your relatives and went back inside to the witness’s office and argued with her and thereafter left with your relatives.
On Wednesday the 30th of August 2000, she went to the bank with her husband and withdrew K6,000.00 to pay some coca producers. Out of that, she paid K4,500.00 to some producers at the bank premises and retain K1,500.00 to pay some others. She and her husband then headed back to her office. As they were walking, she sensed that someone was at her back. So she turned and as she turned, you walked into her front, armed with a knife with another person, who was armed with a pistol. The one with the pistol held her husband up from his front while you held her up at knifepoint also from her front. Although she was surprised, she could clearly look into your face and see that it was you. You wore a blue jean trousers and a black "T" shirt with white strips and wore a cowboy cap on your head. At that time, the time was about 11:30 am and you wore no facemask to disguise yourself.
During the holdup, you said to the witness, the pistol was loaded with live bullets and demand her bag which contained the K1, 500.00 to pay cocoa producers and a further K30.00 belonging to a friend intending to buy some sawing material. At that time, you had your knife pointed at her and pulled her bag away from her and ran with it. So she and her husband gave chase after you to the Caltex Service Station bus stop area. When she and her husband reached the road, Sergeant Wallace, attached to the CID division of the Police Force, drove up in a Police vehicle. So she and her husband reported the incident to him and told him that it was you that robbed them and they were giving chase.
Her husband got on the police vehicle and headed for the main road to block you off, while she continued to give chase to you. As she came after you, she saw you run into the 3rd house in Kreer Compound close to the Kreer Compound bus stop. She got there and asked where was the person that ran into this house. The people there said they did not know. At this stage, she decided to terminate further chasing and searching for you and went to meet up with her husband and Sergeant Wallace.
Upon meeting up with her husband and Sergeant Wallace, she told them that you had gone into a house. From there, they decided to allow Sergeant Wallace to go to town where he had originally wanted to go and she went to the Police Station and reported the robbery.
Second State Witness - Sergeant Wallace
The second State witness, Sergeant Wallace supports the first witness’s evidence from the time when that witness said she and her husband stopped the witness whilst pursuing you. He also confirms seeing you running across the road near the Caltex Service Station bus stop, with a blue jean trousers and a black "T" shirt with white strips.
He too said he knows you well, starting from working with you during the 1997 National General Elections. He says, he has been living and working as a policeman in Wewak for 26 years now. Further, says he has come into contact with you from time to time in the course of his duties. He specially said he has spoken to you on occasions concerning your drinking habits and has asked you to behave. Based on this knowledge of you, he says he made no mistake in identifying you.
Your Evidence
Your testimony is that, on the day and in particular the time of the robbery, you were at the Boram Hospital getting medical treatment. Upon returning from the hospital and getting off at the Caltex Service Station bus stop, you then walked to your house and the Police stopped you. They then asked if you had done any wrong and you answered no. Thereafter, they asked you to hope on their vehicle and they drove to your house. The vehicle was brought to a stop and you and the Police walked into your house and they picked up your black "T" shirt with white stripes and went to the police station.
At the police station, the police questioned you in relation to the robbery. You told the police you did not know anything about it and they locked you up in the cell. This was on the Thursday following the robbery. In the night you felt short of breath and they allowed you to be on the outside until the next day. The next day, your sister came and questioned them as to the reasons for you being locked up, saying you were on medication and gave them the medical reports on your treatment.
You deny knowing the first state witness and one of the victims of the robbery but agree that she knows your mother and your mother knows her, based on your mother telling stories about her. You also deny having to do anything with the victim any time prior to the robbery. Hence you said the victim’s evidence of knowing you and the rest of your family members is a lie and so is the argument she spoke of supposedly occurring on Monday the 28th of August 2000. You were not able to say why she could falsely accuse you of having robbed her, given the good relationship with your mother.
You also said you had no contact or dealing with Sergeant Wallace except for the 1997 National General Election operations. You maintained that you did not know that Sergeant Wallace was a policeman when asked in cross-examination about that. But when the Court asked in what capacity was Mr. Wallace engaged in the 1997 elections, you said as a policeman providing security.
Assessment of the Evidence
I will not assess the evidence before me. In that regard, I noted that it is settled law that logic and commonsense do play a very vital role in the assessment of evidence. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266 in these terms:
"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and commonsense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendant’s failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."
It is also settled law that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination. That I noted was in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which I considered is a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. The Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J made that clear in the context of a belated claim of alibi.
Applying these principles against each of the witness’s evidence, I can not see any trace of illogical or out of commonsense account in either of the State’s witness’s evidence. A clearest indicator of this is the fact that your mother and Ruth Benny, if not the entirety of their respective families, are good friends. There is no evidence of any animosity or difference or anything like that that could cause Mrs. Benny to falsely accuse her best friend’s son of having robbed her unless that in fact happened. Your submissions do not point to any part of the State’s evidence that is illogical or falls out of any commonsense. I am thus left with no reason to doubt the State’s witnesses and their evidence. Instead, I find them credible and accept them.
The same can not be said about your testimony. I accept the State’s submission that your evidence has inconsistencies and contains claims not supported by any evidence. A clearest example of inconsistency is in relation to your knowledge of Sergeant Wallace. Despite your own evidence of having worked with this witness in the 1997 National General Elections, where he served has a policeman, meeting security requirements during that period, you said he is not a policeman. Also, this witness has been working and leaving in Wewak for about 26 years now. Wewak is not a big town or a city and there are not many policemen. You leave within the township of Wewak. It is reasonable therefore to infer that, even if you did not know him personally or you did not come into contact with him, you could have heard about him or might have come across him since the 1997 elections, but you claim no knowledge of him.
Apart from such inconsistencies, part of your evidence are illogical and out of touch with commonsense. An example of that is in the relationships between your family and that of the victim. You do not dispute that your mother and the victim were good friends and they shared or exchanged goods. This was over a period of years since the victim came and settled in Wewak in 1985. It is therefore reasonable for you and other members to at least come into contact with the victim and her family but your evidence is to the contrary.
Further, you claim in your evidence that you were at the Boram Hospital at about the time the robbery took place. Yet you gave no notice of any alibi and have not raised that in the cross-examination of the witnesses. This was not a difficult thing to do. If indeed you were sick and did go to the hospital as you claim, your sister, who you said is a nursing sister, could have either treated you or could have done something about your treatment that day, given our way of life. So she could have easily vouched for you. However, for reasons only known to you, you could not get her to do that for you.
As noted already, the law clearly says if a party tells a story in Court without first having put that to the other side, that evidence must be treated as recent inventions. As such, it should be treated as unreliable: John Jaminan v. The State (No.2) (supra).
Added to these, I observed and noted your demeanor in Court and in particular the witness box was such that you did not impress upon me as a truthful witness. For example, you did not answer questions put to you by both your own lawyer and that of the State confidently and were looking for words as if you were not sure of what you were saying.
Given these factors, I do not find you to be a credible witness and I find your evidence incredible. I therefore reject your evidence except to the extent that they support the State’s case.
This is not however, is the end of the matter. The law requires me to have a closer look at the evidence that I have now decided to accept and then decide whether the evidence is sufficient for the purpose of establishing the charge against you. The issue in this case as already noted in the beginning of this judgement, is identification. Where identification is an issue, specific principle of law govern an examination of the evidence on the issue.
The Supreme Court stated the principles in John Beng v. The State [1977] PNGLR 115, at pp. 122 –123. I set out the relevant part of that judgement in my judgement in The State v. Raphael Kimba Aki (unreported judgement delivered on 26/01/01) N2039, at p.6. In summary, the principles are these:
"1. it has been long recognised that, there are dangers inherent in eye-witness identification evidence;
(a). a convincing witness may be mistaken; or
(b). a number of witnesses could be mistaken;
In line with these principles, I warn myself that both Mrs. Benny and Sergeant Wallace may be mistaken in their observation and hence their identification of you. So I need to carefully consider the circumstances in which they say they identified you.
As already noted, the robbery took place during broad daylight. The time estimate is between 11: 30 am 12:00 noon. We have two witnesses positively identifying you. Both witnesses knew you prior to the robbery and they recognised you during and shortly after the robbery. Mrs. Benny saw you in the face at very close range. You were not masked. You were also identified with the clothes you were wearing at the time of the robbery. One of them described as a black "T" shirt with white stripes was found in your house when police went with you the next day or so after the robbery. This is from your own evidence. This may be circumstantial but they do support the case against you.
Further, no suggestion was put to these witnesses that the day was very poor, say dark and or gloomy and raining, making the witnesses’ identification of you difficult. Likewise, no suggestion was put to the witnesses for example that, there were some obstructions or interference in their identification of you. Similarly, nothing was asked about the witnesses’ eyesight. I take it that these factors were accepted to be operating in favour of the witnesses. As such, they were not questioned in any way.
Your cross-examination did suggest to the witnesses that they may have been mistaken without specifying the factors that might have caused them to be mistaken. The only suggestion made was in relation to there being a lot of people but that is away from the actual scene of the robbery. At the scene of the robbery, the only persons that were there according to the version of the evidence I accepted, were Mr. And Mrs. Benny and you and your accomplish. Similarly, Sergeant Wallace saw only you running across the road. No suggestion was put to him that there were other people running across with you at the same time.
A careful consideration of all of these leads me to only one conclusion. The quality of State’s witnesses’ evidence is good. I have no reason to doubt their credibility and truthfulness. I am therefore, satisfied beyond any doubt that you have been identified, both at the scene of the robbery and when you were running away from the scene. No conditions existed that might cast any doubt as to their identification of you and that being correct.
There being no issue on the other elements of the charge against you, I am satisfied beyond any reasonable doubt that you robbed Ruth Benny as alleged. I therefore find you guilty of the charge of armed robbery contrary to section 386(1) and (2) Criminal Code. I therefore return a verdict of guilty against you on the charge of armed robbery contrary to s. 386 (1) and (2) and convict you accordingly.
I order that your bail be revoked and that you be remanded in custody at the Boram CIS pending your sentence. Your cash bail, if any, shall be refunded on the production of your receipt.
DECISION ON SENTENCE
For purposes of sentencing, I note that you are 29 years old, with no formal employment. You have been educated only to grade 10 level education and have had some casual employment from time to time. You live with your parents at Kwia settlement at Kreer compound. Further, I note that you are married with one child.
Since the law requires the sentence in anyone case to reflect the particular facts of each case, it is necessary to note the relevant facts in this case. The relevant facts are as set out above in the judgement on verdict. However, for the purposes of determining an appropriate penalty, I note the following:
These factors operate against you. In addition to that, I note that you have been found guilty and convicted of the offence of armed robbery after a trial. Then after your guilt was established, you expressed no remorse over what you did. Also you have not shown any willingness to either repay or otherwise make good the damage you brought upon the victims.
Further, you committed the offence in broad daylight. You were not masked or otherwise disguised. This indicated your not fearing being caught by the law. Your conduct in this respect, in my view, is indicative of your contempt for law and order and telling the world that you are beyond the reach of the law.
Furthermore, you committed the offence against persons who would have least expected you to do such a thing to them. You therefore destroyed a de facto form of trust they had in you. This only highlights that fact in our country that you could not easily trust anybody, even your friends. Whether you realize it or not, this kind of conduct is eating into the very fabrics of our society. Hence, unless this problem is seriously addressed with stiffer penalties, the country will be further damaged by such senseless behaviour of people like you.
Finally, you committed an offence that is prevalent and there are repeated calls by the community for a stiffer penalty. This offence is being committed everyday throughout most parts of the country. People are living in fear and that is preventing the free conduct of business and people going about their normal activities freely. Many people who would come with their skills, knowledge and money to help build our country, both economically and socially are scared off by this kind of offence. I made these observations as recent as in The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237 at page 5 and The State v. Jamie Campbell Fereka (unreported judgement delivered 07/04/03) N2359 and just last month in The State v. Lucas Yovura (02/05/03) CR 2002 of 2000 (judgement yet to be numbered).
At the same time, I noted in most of these cases that out of the bad experiences and the various other difficulties, criminal activities such as armed robbery brings upon majority of our peace loving people, repeated calls for tougher penalties against people like you.
I have responded to that by imposing sentences as high as 20 years as in The State v. Edward Toude & Ors, (18/10/01) (No. 2) N2299, after a trial for an armed robbery on a ship. Then in the case of a guilty plea, I have imposed sentences as high has 15 years as in The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188. In arriving at such sentences, I noted and accepted that although Parliament has prescribe life imprisonment as the maximum penalty, the Supreme Court has come up with guidelines for sentences in armed robbery cases in Gimble v. The State [1988 – 89] PNGLR 27 for sentences far below that.
They allow for sentences of up to 7 years at the top end for robbery of a dwelling house and 3 years for a robbery on a street at the lower end. These are for cases of guilty pleas by first time young offenders with no aggravating features. The actual sentence in anyone case may be over or below those recommended. I have also noted that, these guidelines have been varied by subsequent judgements of the Supreme Court such as the decision in Tau Jim Anis v. The State SC642. Numerous warnings have been given in many judgements of both the National and the Supreme Courts that the Courts will impose much higher or stiffer penalties, given the high and frequent occurrence of the offence.
A period of more than two years have passed since my judgement in The State v. Edward Toude & Ors (supra) and a period of over one year has passed since the judgement in the case of The State v. Vincent Malara (supra). I do not consider the period that has lapsed since these judgements sufficient to enable offenders like you to become aware of the sentences.
Subsequently, I imposed a sentence of 12 years in The State v. Jamie Campbell Fereka (supra) on a guilty plea to armed robbery. The prisoner in that case was married with children. He was armed with a gun and used it to execute the robbery. But he was overpowered and injured by his victims. He was hospitalized on account of the injuries he sustained.
In The State v. Lucas Yovura (supra), I also imposed a sentence of 13 years on guilty plea to armed robbery because of a number of aggravating factors. That included a shot out with the police and substantial amounts of money being stolen most of which were not recovered.
In your case, you have no factor in your mitigation. The only exception is the fact that the amount of money involved is not as substantial as the amounts stolen in The State v. Lucas Yovura (supra) or The State v. Vincent Malara (supra). Given this, your sentence has to be higher than those imposed in the cases cited above. In expressing that view, I note that the need of leniency is usually an important consideration in a case where the offender is a first time young offender. The Supreme Court in Acting Public Prosecutor v. Don Hale (27/08/98) SC564, held that a lenient sentence can be imposed against a first offender aged 19 or below.
In your case, you are not a young offender but an adult married man. What this means is that, as an adult person, you were in a better position to know that what you set about to do was wrong and yet you proceeded to do it. Accordingly, there is no room for any mercy or leniency. That being the case, there is nothing preventing me from imposing the maximum prescribed sentence of life imprisonment.
However, I know there are cases far more serious than yours such as those cases in which there has been far more serious factors in aggravation such as, committing the offence in the pursuance of another serious offence, have been given sentences lower than life. Similarly, there have been cases in which sentences less than life have been given in cases falling in the more serious cases of armed robbery per the Gimble v. The State (supra) guidelines.
Only on the basis of the comments I have just made, I consider a sentence above the 8 years you submit through your lawyer as the starting point and less than 17 years appropriate. I consider a sentence of 15 years more appropriate. This brings your case to the same footing in terms of the sentence only in The State v. Vincent Malara (supra). But I consider it appropriate considering the fact that in Vincent Malara, was a case of guilty plea with serious aggravating factors. At the same time, I note that this sentence is higher than the one in The State v. Lucas Yovura (supra). This I consider is warranted because in your case, your guilt and conviction has come through a trial.
I order that you serve the term of 15 years in hard labour less the 6 days you have already spent in custody awaiting your trial and
sentence.
________________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor
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