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State v Otto [2007] PGNC 128; CR 581 of 2005 (10 September 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 581 OF 2005

STATE

V

CASPER OTTO

Kokopo: Lay J.
2007: 23, 24 August
10 September

CRIMINAL LAW–Criminal Code Section 386 - armed robbery - issue of identification - moonlit night - witness under threat of guns - actual period of observation unknown - other evidence not of sufficient probative value to confirm identification - identification unsafe.

Cases Cited

PNG Cases
John Beng v The State [1977] PNGLR 115
John Jaminen v The State [1983] PNGLR 318

Overseas Cases
R v Morris (1969) 54 Cr. App. R. 69
R v Davies and Murphy (1971) 56 Crim. App. R 49
R v Turnbull & Ors [1977] QB 224
Philips v The Queen [2006] HCA 4

References
Criminal Code

Counsel
L. Rangan, for the State
P. Kaluwin, for the Accused

DECISION

10 September, 2007

LAY J: The State alleged that on 20 November 2004 at about 7:30 p.m. Casper Otto and six others robbed a trade store owned by Ellison Eliakim of Marmar village in East New Britain. The total value of goods stolen was K700. The State conceded that K300-K400 worth of goods was recovered. The issue for trial was one of identification.

The principal witness for the State was Likius Burua. He said that between 7 and 8 p.m. on the evening of the robbery he walked down to the road at a point about 100 m from the store and found Casper Otto and other men walking slowly along the road carrying heavy bags and baskets full of goods. Three of them were armed with shotguns. They ordered him to walk with them.

Likius Burua said that it was a moonlight night, and as he walked along by compulsion with the group carrying the bags and baskets he recognised Casper Otto, Danken and Wayne. He did not recognise any of the others. Casper Otto was holding a gun. He agreed that there were both cocoa and coconut trees along the road they were walking and a lot of tall coconut trees when they entered a plantation.

After walking for about a kilometre the men he was with went into a plantation then ordered him to run into a cocoa patch and he hit his foot on a tree root and it swelled up. Then he heard a bell ring. People ran from the village towards them and the men he had been with ran off. When the people from the village got to where Likius Burua was he joined them running after the men.

The State also relied on circumstantial evidence provided by Ronald Rumet. He said that in the morning on the day of the robbery he was at a football field and he saw Casper Otto carrying a basket. He asked Casper Otto for matches and he replied he did not have any and opened his basket to show him. Casper Otto saw in the basket some croton leaves, a bush knife with an unusual blade commonly known as a pato (duck) knife. There was a T-shirt tied around the handles of the basket.

Later in the night, after the villagers had chased the people they thought were the robbers who ran in all directions, a basket was found abandoned which appeared to Ronald Rumet to be the same basket that he had seen Casper Otto carrying earlier that day. It was held up by someone and Ronald Rumet shone his torch on it. There was a T-shirt tied on the handle and it contained a pato knife and Croton leaves. Likius Burua was shown a photograph (exhibit. P5B.) and identified the basket depicted in that photograph as being the same basket he saw on the night of 20 November 2004. He agreed in cross-examination that there was a piece of black cloth tied on the handle of the basket, not a T-shirt. He agreed that that type of basket was common, that type of bush knife was common and that a lot of people tied cloth on their baskets in the same way as the basket in the photograph. He did not agree that many people decorated their baskets with Croton leaves.

During Eliakim also gave sworn oral evidence for the State. He would have been about 14 years of age at the time of the robbery, he is the son of the victim. He was present in the store on the night of the robbery. When the robbers were leaving one of them gave him a packet of biscuits and During recognised him as Danken from the tattoos on his face and hands. He was wearing Dunlop shoes, a cut Shirt and trousers and no mask. There was a hurricane lamp hanging outside the store from which he could see.

During Eliakim said that the following day he was in the store and Wayne, Alphonse, Casper and Danken came to the store and asked if it was the store that had been robbed the previous night.

The following documents went into evidence by consent:

The police statement of Burua Likius dated 27 November 2004 was tendered by the accused and marked "D1".

Casper Otto gave sworn evidence that he was at the football field all day and then in the early evening went to a crusade. He saw Danken and Wayne there. Wayne was looking after the generator. They stayed at the crusade until it was ended. Then he with a group of village people walked home. That was between 9 and 10 p.m.

Dawin Tilon gave evidence in similar terms to Casper Otto. He said that on the way home he saw the coals of a fire burning in the plantation. He went in to light his cigarette. Some people who were sitting near the fire and whom he had not seen earlier flashed a torch into his eyes and told him to sit down. They asked him did he hear the bell and then told him that they had robbed the store at Marmar. They told him not to reveal it. There were four of them. Their names were John ToWot, Rongan, Tikol and Tedepia. They gave him some biscuits and twisties which they said they got from Marmar. The evidence amounted to an alibi of which no notice was given.

The law on identification is well settled. I must warn myself of the dangers of convicting on the evidence of a single identification witness. A convincing witness may be a mistake one. Even several witnesses can be mistaken: John Beng v The State [1977] PNGLR 115. Factors of relevance in identification are(a) the impression left by the eyewitness as to his or her reliability and accuracy, (b) the existence of a motive for giving false evidence as to the identity of the offender, (c) the circumstances in which the person to be identified has been observed, (d) the circumstances in which the identification witness finds himself or herself when making the observation, (e) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness, (f) the existence or otherwise of other evidence direct or circumstantial, of facts or circumstances independently proved: See Criminal Law and Practice of Papua and New Guinea, 3rd edition page 638.

Early on the 22nd of August, 2007 before this case formally commenced counsel for the accused informed the court that the sole issue in contention was identification. It was not disputed that there was a robbery at the particular trade store on the evening of 20 November 2004.

Likius Burua was average in terms of the impression he left upon me. He was neither extremely vague nor overly particular in the manner in which he gave his evidence. Being a villager who spends a good deal of time getting from place to place on his own feet, I accept his estimates of distance as being reasonably accurate. No motive for giving false evidence was disclosed in the evidence. Circumstances in which the person to be indemnified, that is Casper Otto, was observed were not ideal. It was night, there was a moon. Likius Burua said it was clear as they walked along. During Eliakim said the moon was not bright. Likius Burua agreed that there were both cocoa and coconut trees. Counsel for the accused has suggested that there would be shadows. However, that really depends upon the position of the moon in relation to the trees. The trees would cast shadows, but not necessarily onto the road, and there is no evidence that shadows were being cast onto the road.

Another circumstance is time, Likius Burua said that they had walked about 100 m before he recognised Casper Otto. Before he was ordered to run into the plantation, they had walked a total of 1 to 1 1/2 km, slowly. Putting a slow walk at 3 to 4 km an hour would place the amount of time which they were together at 15 to 20 minutes. As to the opportunity for observation, the evidence does not disclose whether Mr Burua was walking in front of or behind or beside the person he believed to be Casper Otto, or whether their relative positions changed from time to time. So we do not know over what period of the total time they were together, Mr Burua was able to observe the person he thought was Casper Otto. Likius Burua said Caspar Otto was holding a gun and the men with the guns were at the rear. I draw the reference that the man Likus Burua thought was Caspar Otto would have been behind him.

A further circumstance is that there was only one person talking to Mr Burua and that was not Casper Otto. So I note that Mr Burua did not have the assistance of voice in the identification.

The circumstances in which Mr Burua found himself when making the observation were that he was being forced along the road at gunpoint. Common sense suggests that at first having guns pointed at you would be a shock. No evidence was led as to whether that shock was replaced by fear or whether any fear dissipated as they walked along. However, from the fact that when he was ordered to run Ilikis Burua did so, and not carefully but in a manner which caused him to hurt his foot, I infer that he still had considerable respect for the guns which they were carrying. The identification was one of recognition of a person he already knew, a person with whom he had previously spoken and shared betel nut. However that person was behind him. The amount of time he had for observation of the person holding a gun and walking behind him is unknown.

There are no other eyewitnesses contradicting or confirming the evidence of Mr Burua.

Whether there is any other evidence direct or circumstantial of fact or circumstances independently proved? There is the basket. It is established that the basket was found near a creek from which a number of people fled when they were pursued by the villagers on the night of the robbery. A pair of Dunlop shoes were also found at that place. Ronald Rumet said the basket looked like Casper Otto's basket he had seen earlier that day. The distinctive features being the pato knife, the cloth tied around the handles and the Croton leaf decoration. The first two features the witness conceded were common of baskets in the area. During examination-in-chief and in cross-examination Ronald Rumet was insistent that what was tied around Casper Otto's basket at the football field was a T-shirt. He claimed that also appeared like a T-shirt to him tied to the basket after its recovery when it was held up in the night and he shone his torch on it. In my view no one could mistake the narrow strip of cloth tied around the handles of the basket depicted in the photographs, as being a complete shirt. It might be a piece off the hem of the shirt about 1cm wide. Ronald Rumet said the basket he saw that night and the basket in the photographs are the same basket. He did not say that the basket in the photographs was the basket that he saw at the football field. Some doubt then hangs over the identification of the basket. Casper Otto denies that the basket is his. I conclude that it would be unsafe to use the discovery of the basket as evidence tending to confirm the presence of Casper Otto.

The Dunlop shoes may be the same or similar to that pair worn by Danken, as mentioned by During, but Dunlop must make millions of those shoes each year and sell thousands of pairs in Papua and New Guinea. In addition, there are copies or similar shoes made by other manufacturers which are sold in Papua and New Guinea in the tens of thousands. Coupled with the evidence of During Eliakim that he saw Danken, the shoes are slight evidence that Danken was involved. On a trial of Danken it is most likely that such evidence would be excluded on the basis that it was not a sufficiently unusual feature as to aid in the identification of his presence at the scene of the crime.

Further, it does not seem to me that evidence of mere innocent association by Casper Otto with Danken and Wayne goes any way to establishing that they committed a criminal act together. It is not similar fact evidence. For an inference to be drawn of guilt by association the evidence of previous association must show a propensity to commit unlawful acts together. See for example R v Davies and Murphy (1971) 56 Crim. App. R 49 where the accused was seen in the company of a person convicted of a very similar crime to the one with which the defendant was charged, which was perpetrated later on the same day.

Similar fact evidence can be used to help identify the accused, if:

1. the similarities are sufficient to show that the accused and the guilty person have common characteristics which are so unusual that it is likely that they are one and the same man: R v Morris (1969) 54 Cr. App. R. 69, 80;
   
2. it is of association with a person who has been proven to have committed a similar offence: R v Davies and Murphy;
   

100. there is an odd coincidence which the accused has not explained, e.g. a thief is seen running into a house, later the accused is identified in a parade and the house proves to be his father's house: R v Turnbull & Ors [1977] QB 224,230 (CA)(cited in John Beng v The State (supra)).
     

To be admissible and relevant the evidence must possess particular probative qualities, a strong degree of probative force, a real material bearing on the issues to be decided: Philips v The Queen [2006] HCA 4.

My view is that the existence of the Dunlop shoes has no probative value. The identification of Danken by During is still an open issue. It has not been proven by judicial decision given in evidence that he was involved in this crime or a similar crime in the past. The fact that there is some evidence that he was there, in my view cannot be evidence that the accused Casper Otto was there or that the identification made by Likius Burua is correct, because Danken and Casper had previously been seen in innocent association.

The identification of Casper Otto by Likius Burua was made in difficult circumstances over a period of some 15 minutes during which time there is no evidence of how long Likius Burua actually had to observe the person he believed to be Casper Otto. The other evidence called relating to the basket, and to confirm the identification of Danken is not of sufficient probity value to be relied upon to assist in confirmation of the identification made by Likius Burua of Casper Otto.

27. In all the circumstances of the case, I consider that there must be a reasonable doubt as to the accuracy of the identification by Likius Burua. The accused is entitled to that doubt. I acquit and discharge the accused on the charge preferred.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accussed