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State v Damien [2012] PGNC 253; N4917 (12 November 2012)

N4917

PAPUA NEW GUINEA
[IN THE NATIONAL COUT OF JUSTICE]

CR 235 OF 2006

THE STATE

V

BENNY DAMIEN

Bialla: Kawi, J
2010: 11th, 12th November

CRIMINAL LAW – Armed Robbery – Criminal Code – Section 386(1)(2)(a)(b) – trial Principals of identification considered – Whether the accused was involved in the armed robbery – State witnesses identified three boys belonging to their father and two sisters – This was sufficient to implicate the accused to the robbery – Accused raised the defence of alibi – Alibi evidence considered – Alibi evidence had a lot of inconsistencies and is false and cannot be relied upon - quality of identification evidence good – Accused found guilty and convicted of armed robbery

Facts
The accused was indicted on one count of armed robbery. He pleaded not guilty and raised the defence of alibi in his defence. In his alibi evidence he alleged that he was playing soccer (Semi-finals) on that Sunday 31 July 2010. He claimed that he was mistakenly identified as he was at the soccer field playing soccer and could not have been involved in an armed robbery, let alone be seen at the river carrying a gun and guarding the camp of the bandits. On the allegation of mistaken identity and alibi as a defence:

Held:

1. Applying the relevant principles of identification evidence as stated in the cases of John Beng –v– The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153, and Jimmy Ono v The State (2002) SC 698, there is no doubt that the accused was:
   
   1. Properly identified and recognised as being a member of the gang.
      
   2. The quality of evidence was good, it was not a fleeting glance, but a prolonged observation of a person well known to the identifiers.
      

2. The circumstances from which the identification and recognition took place was good:

a) Identification and recognition occurred at broad daylight between 3.00 pm and 4.00 pm when there was ample lighting and when the identifiers could clearly see the accused who had nothing to cover his face to conceal his identity.

b) The accused was standing and facing his identifiers who clearly recognized him from a frontal position;

c) The identifiers could clearly see and recognize three bags, one belonging to their father and the other two belonging to their two sisters. This was sufficient to implicate and connect the accused to the robbery.

3. Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioning myself as the tribunal of fact, of the inherent dangers, the court was satisfied beyond reasonable doubt, having regard to the principles set out by the Supreme Court in John Beng –v–The State [1977] PNGLR 115, Biwa Geta –v–The State [1988-89] PNGLR 153, and Jimmy Ono –v– The State (2002) SC 698, that the quality of the identification evidence was of high quality and sound, as;

(a) The State witnesses were honest.

(b) They were identifying someone they knew well and recognised.

(c) They were not disturbed emotionally to the point that they were not in a right frame of mind to recognise the accused.

(d) There was ample time for them to recognise the accused. It was a prolonged recognition and not a fleeting glance of a total stranger.

(e) Despite the identifiers hiding in the bush under cover of huge trees and undergrowth covered with wines and shrubs, they could clearly identify the accused who was standing facing their direction in an open clear space with no trees or vines, shrubs and undergrowth. Sufficient lighting was provided by broad daylight when the identification took place. And the identification took place between 3:00 pm and 4:00 pm when there was still sufficient lighting from the daylight.

4. As to the alibi evidence, the court was satisfied, having regard to the principles set out by the Supreme Court in John Jaminan –v–The State (No.2) [1983] PNGLR 318, that its quality was poor and the alibi was, in fact false as:

a) The accused and his principal alibi witness were both unimpressive witnesses and both their demeanours were poor.

b) The alibi evidence was riddled with inconsistencies and many aspects of this alibi evidence were against logic and common sense.

c) When the identification evidence and the alibi evidence are weighed together, the identification evidence, considered alone, was sufficient to establish and implicate the involvement of the accused in the armed holdup. The alibi evidence did not give rise to any serious doubts or casts grave aspersions at all of the accused being involved in the armed robbery.

5. The accused is therefore found guilty as charged and convicted of armed robbery.

Cases cited:

The State –v– John Beng [1976] PNGLR 471
John Beng –v–The State [1977] PNGLR 115
Biwa Geta –v– The State [1988-89] PNGLR 153
Jimmy Ono –v– The State [2002] SC 698
John Jaminan –v–The State (No. 2) [1983] PNGLR 318
The State –v– Peter Malihombu [2003] N2365
The State –v– Cosmos Kutau Kitawal (No. 1) [2002] N2245
The State –v– Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
Gari Bonu and Rossana Bonu –v– The State [1997] SC 528
Paulus Pawa –v–The State [1981] PNGLR 498
The State –v–Tauvar Avaka [2000] SC 595
The State –v– Okata Talangahin [2004] (No. 1) N2581
The State –v– Marety Ame Gaidi (No. 1) [2002] N2256

Counsel

Mr Francis Popeu, for the State
Mr Trevor Potoura, for the accused

JUDGMENT ON VERDICT

1. KAWI, J: Benny Damien of Sebedala Village, Nuku District, Sandaun Province pleaded not guilty on arraignment to an indictment charging him with one count of armed robbery contrary to Section 386(1)(2)(a)(b) of the Criminal Code.

Brief Facts

2. The allegations by the State which led to Benny Damien being indicted is that it is alleged that on Sunday the 31st July 2005 between 11:00 am and 12:00 midday, the accused in the company of six (6) other young men armed themselves with four (4) shotguns and three (3) bush knives and entered the premises of one Kurum Kuvi, at Section 2 Block 1064 at Vilelo Oil Palm Block, Bialla. The accused and his gang held up the said Kurum Kuvi and his family. They were then forced to go into a room at the said Kurum Kuvi's house where they were all locked up in one room while the gang went about inside the room ransacking it and laying their hands on any valuables they could see.

3. In that process they stole K16, 000.00 in cash belonging to the said Kurum Kuvi. Other household valuables including clothes and bags to the value of K1, 980.00 were also stolen. They were also alleged to have ransacked a chicken house belonging to the Kurum family, and stole some live chickens. They then escaped into the bushes.

4. Just as they were running away, they discharged two warning shots from one of their shotguns into the air. These warning shots alerted the neighbours including one of the sons of Kurum Kuvi, one Benny Kurum, who mobilized others and followed the gang and identified them with the result that one of the gangsters, Benny Damien, was subsequently arrested and charged with armed robbery.

5. To sustain the allegations the State called in three witnesses namely Esther Kurum, Benny Kurum and Sammy Kurum, who all gave sworn evidence.

State Witness # 1 – Esther Kurum

6. Esther gave evidence of being in the house when they were held up by seven (7) armed bandits whom she described as all wearing face masks to conceal their identities. She stated that they could not recognize any one of them. After the gang escaped into the bushes, their father sent one of his daughters, namely Esther and her friend Eli to go down to the soccer field and scout around the canteen area to see if anyone was spending exceptionally large amounts of money buying store goods.

7. According to this witness the father had some suspects in mind and so he sent the girls down to the soccer field to scout around. However, Eli and Esther could not identify any person spending huge sums of money and so they returned to the house. Their father never told them or revealed to them the name of that someone whom he suspected.

State Witness # 2 – Benny Kurum

8. This witness was in his house at his own block when he heard gun shots from the direction of his father's house. This prompted him to run up to the house to investigate. His father told him of the robbery and the direction the rascals took and he began tracking them. Because it was the dry season, there were a lot of dust and on the ground there were shoe prints (KT prints) as well as foot prints of human beings which he followed. There were some inconsistencies here; in his earlier statement to the police and his evidence in court.

9. In his police statement, he said he followed thongs prints of persons wearing thongs. When asked in cross-examination as to why this inconsistency he explained that it was such a long time that he gave his statement to police, (September 2005) that he had difficulties in recalling his story.

10. The tracks took him to the edge of the Hargy Oil Palm Plantation, and being all by himself, he came back to his father's house to mobilize more support. Four other men all came together and they left to follow the tracks commencing at the location where Benny Kurum had left off. There were five men all together. They were:

(a) Benny Kurum;

(b) Sammy Kurum; (Benny Kurum's elder brother)

(c) Max Akia (Village Court Magistrate)

(d) Tokin; (Benny Kurum' cousin brother)

(d) Jack (Benny Kurum's younger brother)

11. They picked up the tracks and which took them into the forests. The tracks took them to the base of the Hargy Mountain and towards the heights of the Lombo Mountain. However instead of going up the mountain, the tracks went around the base of the mountain and then headed for the river which they followed to a sandbank spot where the Lombo river and another smaller river meet, thus creating a big sandbank in between. The gang were seen resting there. Some gang members were swimming while others were roasting the stolen chickens over the fire.

12. The accused Benny Damien was clearly seen guarding the camp. He had nothing covering his face to conceal his identity. He was clearly seen holding a rifle and he guarded the camp. The witness was asked and he demonstrated how the accused stood and held the gun with both hands. He described how the gun was held with the barrel pointed to the sand.

13. In cross-examination, he was asked as to the time when he and the others first spotted and identified the accused. He told the court that the timing was about 3:00 pm to 4:00 pm. He vehemently denied suggestions by Defence Counsel that it was between 5:00 pm to 6:00 pm. He stated that because it was a bright day, the afternoon was equally bright and from the estimated 20 meter high vantage point where they were standing, they could clearly look down towards the sandbank and see the accused and his gang members.

14. Benny Kurum and his companions were standing on the top of a small cliff and were looking down at the accused and his gang. During cross-examination it was further suggested that because of the thick undergrowth and the bushes coupled with the distance, it was some-one else who was holding the gun and not the accused. The witnesses maintained that there were only about 30 to 40 meters away from the accused and his gang and so he could clearly see the accused. He was quite firm and maintained all along that it was Benny Damien and no-one else.

15. He stated that he knew Benny Damien long before this incident as some-one who was also living at Vilelo Oil Palm block. Benny Kurum and the accused, Benny Damien would at times share a betelnut or a mutrus whenever they see each other.

16. He maintained strongly that he could not be wrong as to the identity of the person who was holding the rifle and guarding the camp.

17. He was steadfast and very dogmatic in his answers that the person whom they saw holding the gun and guarding the camp was Benny Damien. Apart from seeing Benny Damien with a rifle, Benny Kurum and his companions also spotted three stolen bags, one owned by his father and the other owned by his two sisters. Finally it was put to him in cross-examination that he could be easily but mistakenly identifying the person holding the rifle as Benny Damien because his father had told him before they set out to follow the tracks of the rascals and that he suspected Benny Damien to be one of the robbers.

18. Consequently, he had a fixed and prejudicial mind that although the person holding the gun could have been some-one else, because of his pre-occupation with Benny Damien he identified that some-one else as Benny Damien. The witness maintained clearly and unequivocally that his father was only informed of Benny Damien, after they came back that night and informed him.

19. When their father was informed he is alleged to have said; "I thought I heard and recognized Benny Damien's voice during the robbery."

State Witness # 3 – Sammy Kurum

20. This witness is also known as Kurum Kurum or Kurum Junior. He was in the company of his father and sisters when they were held up by seven (7) armed men. The seven (7) men all wore face masks to conceal their identities. As a result none of the persons who were held up could easily identify any of them.

21. Sammy and his father and two sisters were all forced into a room where they were all locked inside the room. The rascals helped themselves to three bags belonging to their father, Mr Kurum Kuvi and the two sisters. Clothes and other valuable household items were also stolen and packed in the bag. The chicken house belonging to the Kurum family was also broken into and live chickens were also stolen by the bandits.

22. A cash amount of K16, 000.00 was also stolen by the gang. As they were escaping they fired two warning shots into the air from one of the rifles they (the gang) were carrying. This warning shot prompted Benny Kurum (Sammy's younger sibling) to run up from his house to his father's house to find out what was happening.

23. Sammy and his sisters were all still shocked over this holdup and were trying to recover, when Benny Kurum began following the tracks the bandits took to escape.

24. Benny Kurum returned to his father's house about an hour later and mobilized a bigger party to help him track down the rascals. This bigger group comprised the following personnel:

(1) Benny Kurum, who was the head scout.

(2) Sammy Kurum (Benny Kurum's elder brother)

(3) Max Akia, the Village Court Magistrate.

(4) Tokin (cousin brother of the Kurum's)

(5) Jack, the younger brother of Sammy and Benny Kurum

25. Led by Benny Kurum as the chief scout, the five men set out to follow the tracks wherever it took them to.

26. They followed shoe prints and foot prints on the dust on the ground which took them to the end of the Hargy Oil Palm Plantation and into the forests. The track took them around the base of the Hargy mountain and eventually to the headwaters of the Lombo river. There on the sandbank where two rivers meet and flow into each other they saw the bandits. One of the first bandits they saw was the accused, Benny Damien. He was seen standing on the sandbank and holding a shotgun, which was pointed down to the sand. The others were either cooking and roasting chickens over the fire or were swimming in the river. Benny Damien was not wearing any face masks to conceal his identity, and so he was clearly recognized and identified.

27. During cross-examination it was put to the witness that because this was in the forests which had thick bushes, wines and undergrowth blocking off their views, he was mistaken as to his recognition and identification of Benny Damien. It was most probably some-one else who carried the gun, but because he was told before hand of their father's suspicions of Benny Damien, the witness already had a prejudiced mind of Benny Damien and so he recognized that someone else as Benny Damien.

28. The witness in response stated:

(1) It was a very bright day. It was still very bright between 3:00 pm to 4:00 pm in the river when he and the other trackers identified Benny Damien.

(2) The witness stated that he and his companions were standing on a small cliff about 20 meters high and looking down onto the river bed, where Benny Damien and the other bandits were. This made it quite easy to recognise Benny Damien from their vantage point.

(3) The forest was thick with undergrowth and vines and forests shrubs, but from the vantage point they were standing on top of the cliff, Sammy Kurum could not be mistaken as to the identity of the person carrying the rifle and guarding the camp. He was steadfast and dogmatic in maintaining that the person was no other than Benny Damien. There was never any hesitation at all in his demeanour when he was giving his evidence on the recognition and identification of Benny Damien.

(4) He further stated that he had known Benny Damien long before this incident. He identified Benny Damien as a fellow block holder who also resides at Vilelo Oil Palm Block. He stated that whenever he met up with Benny Damien, he would share a betelnut and smoke with him. Thus he could never be mistaken as to the identity of the accused, Benny Damien.

(5) On the questions of his father's suspicion of Benny Damien, he stated his father never told neither him, nor his younger brother Benny Kurum nor his other companions of his suspicions of Benny Damien before they set out on following their tracks. It was only after their return from their tracking expedition, that both Sammy and Benny Kurum told their father of their identification and recognition of Benny Damien, prompting their father to comment that "I thought I heard and recognised his (Benny Damien's) voice during the robbery."

29. Sammy Kurum supported Benny Kurum's evidence and both agreed that those other bandits who were with Benny Damien could not be easily identified. When cross-examined as to why they could not be identified he stated that they were either swimming in the river, or were roasting the chicken over the fire, with their backs turned against the direction of Sammy Kurum. The others who were swimming had their faces and their bodies submerged in the river making it difficult for them to recognize their faces.

30. Benny Damien was easily identified because he was carrying the gun and moving around the camp and facing the direction of Sammy Kurum and the four other trackers. Furthermore he had nothing to cover his face to conceal his identity. Moreover, he was a local of Vilelo who was known to both Sammy Kurum and Benny Kurum.

31. A major contradiction and inconsistency appearing in his oral evidence in court and the statement which he gave to police investigators in September 2005, was his statement identifying two other persons along with Benny Damien. These two other persons he said in his police statement were:

(a) Gideon Asimba

(b) Simon Tamis

32. In his oral evidence in court he failed to identify these two persons, and who they were.

33. He explained this inconsistency in this way;

(a) He gave his statement to police investigators in September 2005 and he had quite forgotten the story that he gave to the police.

(b) He told his story to police along with Benny Kurum, Max Akia and the others who tracked down the rascals. The police investigator was writing down his story as he (Sammy Kurum) was illiterate and could not read or write. During the interview it was Max Akia who said that he identified Gideon Asimba and Simon Tamis along with Benny Damien. The police investigator who was writing down Sammy Kurum's statement also wrote down the names of Gideon Asimba and Simon Tamis in Sammy Kurum's statement.

34. There were quite a number of other minor inconsistencies which the witness explained as arising because he told his story to the policemen who wrote them down. The state then closed its case after calling in these three witnesses to prove its case. No documentary evidence was tendered into evidence. After the State closed its case, the accused elected to give sworn evidence in his own defence.

Defence Witness # 1 – Benny Damien

35. The accused Benny Damien gave evidence in his own defence. He raised the defence of alibi in his defence to the charge of armed robbery. According to him, he was at the soccer field at Barema to play soccer on that Sunday morning, the 31st of July 2005. The accused says he left his house at 9:00 am and proceeded down to the soccer pitch. By 10:00 am he was at the soccer pitch and between 10:00 am and 2:00 pm he was with his other team mates encouraging each other, and bonding with each other.

36. As a senior player in the team, he took it upon himself to assist their team captain to make sure that all the players were in their right frame of mind for the game on this particular Sunday. This Sunday's game was very important as this Sunday's game was a semi final and his soccer team, the Highlands Storm, was playing another team called Single Knights.

37. Both teams, Highlands Storm and Single Knights, took to the soccer field at 2:00 pm and finished off at 4:00 pm. The game was eventually won by Single Knights who scored one nil over Highlands Storm during the second half.

38. After the game ended at 4:00 pm, the accused remained at the soccer field until 6:00 pm, when he left for his house arriving at home just before 7:00 pm.

39. During cross-examination, he was asked whether he knew the two brothers Benny and Sammy Kurum. He stated that he knew their faces, but not their names. He stated that he knew their faces, because they all live in Vilelo Oil Palm Block. His wife being a fellow Morobean knows the two brothers well.

40. He stated that the brothers live in Section 2 at Vilelo and he resides in Section 12 also at Vilelo. Asked whether he had any grudges against the two brothers or whether the two brothers have any grudges against him, he stated clearly, that he had no grudges against the two brothers and also was not aware of the brothers having grudges against him.

41. He was further asked to name and identify people who were with him and who saw him that Sunday. He named a number of people who were there. This included; Jeremy Wendy, William Patiken, Garry Elias and Robert Lasa, Maria Lawrence, Martin Pembasa, Monica Flasion. In his Record of Interview with police, he stated that those who were with him were his team Captain Tom Kaugle, Sergeant Gary Elias, Jimmy Wendy and William Patiken. He never mentioned the other names.

42. Furthermore, in cross-examination he was asked as to why he did not give the name of William Patiken to the policeman who was conducting the Record of Interview in September 2005. He stated that he did not call the name of William Patiken as he was actually an official officiating during the game. He told the court that he only called the names of players.

43. Assessing the evidence of the accused, the court notes quite a number of inconsistencies and some of these are against logic and common sense.

(a) A normal soccer game, be it in the semi-finals or grand finals, is played for 90 minutes only, that is 45 minutes each half. Not one game is played for two hours, unless the teams have played extra time with the scores being deadlocked at nil all and then the teams go in to a penalty shootout to determine the winner. Only then would a game go beyond the 90 minutes mark.

(b) The names of only players who were with the accused were mentioned. Admittedly Jimmy Wendy and Sergeant Garry Elias were not players and William Patiken was a game official whom he identified as a player. Neither did he mention to policeman conducting the Record of Interview the name of William Patiken. He only revealed his name during cross-examination. Furthermore, apart from Tom Kaugle, non of these persons whom he identified came forward to give evidence to support and corroborate his alibi defence.

(c) The accused said that the Barema Soccer Association is affiliated to the Lae Football Association. His Team Captain Tom Kaugle stated that Barema Soccer Association is affiliated to Kimbe Soccer Association. It is highly doubtful that Barema Soccer Association is affiliated to Lae Football Association, a soccer body operating in another province.

(d) The accused gave evidence that during the Semi finals on that Sunday, players would be selected to play during the annual Tavur Show, to be held in West New Britain. It is also highly doubtful that a normal soccer tournament was held during the Tavur Show a cultural event held in West New Britain every year. It is even more doubtful that players would be selected during semi-finals. It is more logical and common sense that players would be selected during the grand finals and not during semi-finals.

(f) An issue which goes to his credibility as a witness is that when State witness Benny Kurum was called in to give evidence, he stood up and shouted across to witness Benny Kurum objecting to him giving his evidence. In his evidence in chief, he was asked to explain why he did that. His explanation was that the witness Benny Kurum, was not actually Benny Kurum, he was someone else by the name of Nesue. No evidence was led on this issue. Neither did learned Defence Counsel pursue this matter either in evidence in chief or in his cross-examination of State witness. The explanations of the accused that it was someone else impersonating Benny Kurum could not be believed.

What this seemingly minor incident demonstrate is that the accused Benny Damien is quite familiar with who Benny Kurum is. He appears to have some familiarity with his family well, as well as, those close to Benny Damien.

Defence Witness # 2 – Simon Tamis

44. The accused also called in one Simon Tamis to show that he was not in anyway involved in the commission of this crime. He was wrongly identified by witness Sammy Kurum in his statement which he gave to police.

Defence Witness # 3 – Tom Kaugle

45. Tom Kaugle was at the relevant time the Soccer Team Captain for the team Highlands Storm. He gave evidence that he was the club President and Team Captain of Highlands Storm in 2005. On the 31st of July 2005, he initially stated that he was at the Barema soccer field to "watch the semi final games".

46. Subsequently, he told the court that he played in the semi final that day and he identified the accused Benny Damien as one of the senior players who played with him that day. He also described the accused as a very good back-liner, playing in the position of stopper. He also stated that in the morning of that day the accused Benny Damien was with them in their camp. He said that the semi final game was between Highlands Storm and Single Knights.

47. The game started at 2:00 pm and ended at 4:00 pm. The score was one (1) nil to Single Knights who scored the winning goal in the second half. He also stated that in 2004, the soccer season started in January 2004 and ended in August 2004. Asked when the normal season for 2005 started, he said the 2005 season started in early January. The Court notes here that if the 2005 soccer season started in January 2005, then naturally it would have ended with the semi finals and grand finals being played at the end of August or September, 2005.

48. The accused raised and relied on the defence of alibi, notice of which was given in compliance with Order 4, Rule 4 of the Criminal Practice Rules 1987. He argued that he was mistakenly identified. He cited factors such as poor lighting in the forests and poor visibility which he says made the identification of the person carrying the rifle and guarding the camp very poor. He further argued that the distance between the identifiers and the accused was more than seventy meters. And so coupled with all the other factors the accused maintained that he was mistakenly recognised and identified.

Findings of the Fact by the Court

(A) Uncontested Facts

49. Before applying the principles of law on identification, the court makes the following findings of both contested and uncontested facts.

(a) A robbery occurred at the premises of one Kurum Kuvi on Sunday 31st July 2005.

A substantial amount of cash as well as other valuables were stolen from the Kurum family.

(b) None of the perpetrators of the robbery were identified by Kurum Kuvi and his children. Apart from stealing cash and valuables in the house, the bandits also broke into the chicken house of the Kurums and stole some live chickens.

(B) Contested Facts

(a) Benny Kurum followed the tracks, made principally by shoe prints (KT shoe prints) and foot prints to the edge of the Oil Palm Plantation. When he saw that the shoe and foot prints had entered the forests area, he stopped and returned to his father's house. He mobilised other people to assist him follow the tracks made by the foot and shoe prints.

(b) Those who assisted him to follow the tracks were:

(i) Max Akia – Village Court Magistrate

(ii) Sammy Kurum – His elder brother

(iii) Tokin – A cousin brother

(iv) Jack – Benny and Sammy Kurum's younger brother.

The shoe and footprints tracks took them through the bushes to the foot of the Hargy mountain and instead of climbing the mountain, it went around the base of the mountain. The track eventually led them past the Lombo mountain and onto the headwaters of the Lombo river where another smaller river flows into the Lombo river and creating a huge sandbank in the middle.

There standing on the sandbank, Benny Kurum and his tracking party saw a person whom they immediately recognised as the accused, Benny Damien. This person carried a rifle and was guarding the camp. This person placed himself in a position where he could be clearly seen and identified.

(c) The other bandits could not be seen as they were either swimming in the river or had their backs to Benny Kurum and the others, but the one holding the gun could be clearly identified. Apart from identifying the accused, a bag belonging to their father and two other bags belonging to their two other sisters could also be clearly seen and identified on the sandbank.

(d) The person holding the gun was identified as the accused, Benny Damien, who vehemently contested this arguing that at all material times, he was at the soccer field in Barema playing soccer. This day, ie 31st July 2005, was a semi finals day and so his presence at the games was very important to his team, Highlands Storm.

(e) There is no doubt that the accused is a soccer player but whether he was at the games on Sunday 31st July 2005 is highly debateable. The evidence of Tom Kaugle that he went to "watch the games" on the 31st July 2005, casts a lot of doubt on claims by both the accused and Tom Kaugle that a semi final was played on the 31st July 2005. Tom Kaugle's evidence is that the normal season games for the 2004 soccer season started in January 2004 and ended in August 2004.

His further evidence is that the 2005 soccer season started in early January 2005. If this is so then that must also mean that the normal soccer season ended in or about August or September 2005. The inference to be drawn here is that the normal Soccer season ended in August 2005 and not July 2005 as is being alleged in the alibi.

The court therefore finds that the 2005 semi final may have been played at the end of August 2005 and not on the 31st July 2005 as is being alleged by the accused and Tom Kaugle. The game on the 31st July 2005 was an ordinary soccer season game. Furthermore the accused should have called a Match Official or an Executive of the Barema Soccer Association to give evidence and explain why the soccer season was going to end so early with semi-finals being played at the end of July 2005. This would have given credence to his alibi.

(f) The accused argues that the person holding the gun who was identified as Benny Damien was in fact a pre conceived mistaken identity. He argues that the brothers Benny and Sammy Kurum were mistaken because their father had told them of his suspicions of Benny Damien before they set out to follow the bandits trail.

The court accepts the brothers' evidence that their father never told them that he suspected Benny Damien before they set out to track the bandits. Their father was only told of Benny Damien's identity and recognition after the brothers had returned from their tracking expedition.

(g) When the brothers told their father of their recognition and identification of Benny Damien, their father was prompted to say that "I thought I heard and recognized his (Benny Damien's voice during the robbery". The father's suspicion of hearing and recognizing Benny Damien's voice prompted him to send his daughter Esther Kurum and her friend Eli earlier on after the robbery to the soccer field to see if anyone was spending exceptionally large sums of money at the trade store.

There is no evidence to suggest that the father Kurum Kuvi told her daughter and her friend of his suspicions of the accused, Benny Damien, and who in turn divulged that information to her brothers, Benny and Sammy Kurum before they set out to track the bandits trail.

(h) The court makes a finding that the brothers Benny and Sammy Kurum, only told their father of their recognition and identification of Benny Damien after their return from following the trail of the bandits.

Hence the Court finds that Benny and Sammy Kurum never had any pre-conceived ideas as to the identity and recognition of Benny Damien.

50. As the defence case is based on mistaken identity it is necessary for me to consider and restate the principles on identification evidence as stated by the Supreme Court in the cases of John Beng –v– The State [1977] PNGLR 115, Biwa Geta –v–The State [1988-89] PNGLR 153 and Jimmy Ono –v– The State [2002] SC 698.

51. I have warned myself and have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of identification evidence is good, the matter should proceed to a consideration of the elements of the offence. If, however, the quality of the evidence is poor, an acquittal should be entered, unless there is other evidence that goes to support the correctness of the identification.

52. I remind myself again that there is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.

53. In assessing the quality of identification, the relevant considerations to be taken into account are:

(a) whether the witness is purporting to identify a person who was a stranger; or some-one he or she recognised.

(b) The length of time that the witness observed the accused; (e.g was it broad day light; or at dusk or dawn or inside or outside?)

(c) The length of time that the witness observed the accused (e.g a prolonged period or a fleeing glance;

(d) The emotional state of the witness at the time of the identification;

(e) the prevailing conditions; (e.g was it broad daylight or at dusk or dawn or inside or outside;

(f) the time of sight (e.g did the witness have a clear front-view or was the line of sight interrupted or did the witness just see the accused from the side?)

54. If there are discrepancies in the identification evidence, the court should consider them and assess whether they are explicable in terms other then dishonesty or unreliability.

Defence of Alibi

55. The leading case which states the legal position on alibi as a defence is the case of John Jaminan –v– The State (No. 2) [1983] PNGLR 318. The Supreme Court in that case stated: (from the head note).

"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, the accused should be acquitted."

56. Weighing the evidence of identification and the evidence of alibi, this court is of the view that the identification evidence, considered alone is sufficient to establish and gravely implicate the involvement of the accused in the armed hold up. The evidence of the alibi did not in any way create any reasonable or serious doubts at all or cast serious aspersions in my mind as the trial judge of the involvement of the accused in the armed robbery.

Assessment of Evidence

57. A total of six witnesses gave evidence - three for the State and three for the defence. Whose evidence the court should accept, is dependent on a finding of whose evidence that the court finds is credible and acceptable. Both the National and Supreme Courts have applied a number of tests or principles to assess whose evidence is more reliable and credible. I will adopt these legal principles and apply them here to assist me to come to a decision on this issue and make a decision on whose evidence is more credible and should therefore be believed.

1. The Principle of Inconsistencies

58. In so far as is relevant here, the first test or principle applicable here is the principle of Inconsistencies in a witnesses own evidence and other witnesses called by a party. Many cases have applied this principle, for example, Jimmy Ono –v–The State [2002] SC 698.

59. In The State –v– Peter Malihombu [2003] N2365 His Honour, Kandakasi J found that there were a number of inconsistencies in the prosecution evidence. His Honour found that those inconsistencies were serious enough to cast serious doubts on the case against the accused.

60. Accordingly His Honour held that the State could not prove all elements beyond reasonable doubt and acquitted the accused.

61. The clear import of this case and other authorities is that, where serious inconsistencies exist, there is the possibility of false evidence being given and therefore it would be unsafe to act and rely upon it.

62. In the present case there is no doubt that there were quite a number of inconsistencies from both the prosecution and defence witnesses. For instance, the State witness Benny Kurum told the court that he followed footprints of the bandits who wore KT brand sport shoes. In his statement to police however the witness said he followed footprints made from someone wearing rubber tongs.

63. Both witnesses, Benny and Sammy Kurum had a major inconsistency in their statements. In their respective oral evidence both told the court, that they did know who Gibson Asimba and Simon Tamis were. In their statement to police given in September 2005, both said they recognized these two men along with Benny Damien at the river. When cross-examined by defence counsel, both denied knowing who Simon Tamis and Gibson Asimba were. When pressed on in cross-examination to explain why they are now giving inconsistent statements, they gave the following explanations.

(a) It was a long time since they gave their statements to police. In fact it is more than five (5) years (5 years and 2 months) since they gave their statements. During this long passage of time they argued that they have forgotten many facts and their memories on key facts and issues have faded. Both witnesses told the court that they do not have copies of their own statements such that reading it would refresh their memories.

(b) Both witnesses say that they have very little education and could hardly read and write. They said that the highest grade they reached in community school is Grade 2. They are illiterate and could not read and understand their own story as it was told to a policeman who wrote it down for them.

(c) They made their statements to a policeman who wrote their stories down on paper. The stories were told to the policeman in the presence of other witnesses like, Max Akia, the Village Court Magistrate. In the process of giving their names, it was Max Akia who stated that he also recognized Gibson Asimba and Simon Tamis. The police then wrote these names in the statement of Benny Kurum and Sammy Kurum.

(d) Another inconsistency given by these two witnesses relates to the distance between the witness identifying the accused and where the accused himself was carrying a gun and standing. In the statement they gave to police, both said the distance was 70 meters. In court both were independently asked to pinpoint the distance with reference to the court room as the reference or starting point. Both independently estimated the distance to be from the court room to the main gate. On this indication the court estimated the distance to be somewhere from 30 to 40 meters. Indeed Benny Kurum made it clear that this was his estimate of the distance to the Police, but it was the Policeman who then made his own estimation of 70 meters. Even in cross-examination it was suggested to him that the distance was really from the Court room to the Bialla LLG Office, which is a distance of about 60 to 90 meters. Again the witness was steadfast in refusing in maintaining his distance from the court room to the gate.

The Court accepts the witnesses explanation and finds that the distance between the identifiers, Benny Kurum and his trackers and the accused was about 30 to 40 meters.

64. There were other minor inconsistencies present. However, the court finds that these inconsistencies were not serious enough such that they would affect the weight of the evidence given against the accused.

65. In respect of the inconsistencies given by the two state witnesses, the court finds that the explanation given is acceptable. The court will therefore rule that despite the inconsistencies, the court will accept the evidence as it is given. The court finds that the inconsistency as given are explainable and not serious enough to cast aspersions and doubts in the case against the accused.

2. Inconsistencies By Defence Witnesses

66. The two critical witnesses for the defence were the accused himself and one Tom Kaugle. Tom Kaugle was called by the accused to corroborate his abili. A number of inconsistencies and contradictions are recorded arising from their evidences.

(1) In his evidence in chief, the accused was asked to name his team mates and players who were with him that Sunday. He named some of these people as Gary Elias, Sammy Wendy, William Patiken, Robert Lasa, Tom Kaugle, Maria Lawrence, Martin Pembasa, Jimmy Wendy and Monica Flasion. The accused said that there were many others, but he could not name them all. He also said that Jimmy Elias, the son of Gary Elias was also there.

During cross-examination, he identified Gary Elias as a Sergeant in the Police Force and not a soccer player.

(2) One clear inconsistency in this evidence is that in his statement to the police in September 2005, he never mentioned William Patiken as being present. In cross-examination he said for the first time that William Patiken was present. Furthermore in his evidence in chief, he said William Patiken was a player. In cross-examination, he said William Patiken was a game official.

3. Principle of Logic and Commons Sense

67. The third principle or test is similar to the inconsistency principle, but more focussed on testing the evidence given in court against logic and common sense. 68. This principle was stated in this way by Kandakasi J in the case of The State –v–Cosmos Kutau Kitawal (No. 1) [2002] N2245 in these terms:

"Logic and common sense 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."

69. The National Court formally stated and applied this test in The State –v– Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48. The Supreme Court affirmed this test in Gari Bonu and Rossana Bonu –v– The State [1997] SC 528.

70. An earlier statement and an application of this principle is represented by the case of Paulus Pawa –v–The State [1981] PNGLR 498.

71. There are several examples of this in the defence case.

(a) The Tavur Cultural Show is an annual cultural event held in West New Britain. It is not a Soccer Tournament for players to play and display their skills. It is against logic and common sense to say that they played in the semi finals to be selected to play in the Tavur Show.

(b) It is common knowledge and every soccer players and officials know that a normal soccer game is played for 90 minutes. That is 45 minutes each half. The only circumstances when the game goes beyond the 90 minutes mark is when there is a scoreless draw at the end of the normal game or the scores are levelled, then an extra time of 20 minutes is given, that is 10 minutes each half.

If the scores remain scoreless after full time or are tied, at full time of the extra time, then both teams go into a penalty shootout to determine the winner.

Here there was no need to go into extra time, because at full time the score was 1-0 in favour of Single Knights. The game then ended after 90 minutes. To say the game started at 2:00 pm and ended at 4:00 pm is therefore an exaggeration and an outright lie which was calculated to give credence to a false alibi.

(b) The other evidence which I find to be against logic and common sense is the evidence of both the accused and Tom Kaugle, is that Barema Soccer Association is affiliated to the Lae Football Association. The accused says that the Barema Soccer Association is affiliated to the Lae Football Association, while his Team Captain Tom Kaugle says the Barema Soccer Association is affiliated to the Kimbe Soccer Association.

In this case, it is highly doubtful that the Barema Soccer Association has to be a member of the Lae Soccer Association. Logic and common sense dictate that because Barema is in West New Britain, it cannot be an affiliate of the Lae Football Association.

(c) The other evidence given by both Tom Kaugle and the accused relates to the period when the semi finals were played. According to these two men, the semi finals were played on the 31st of July 2005.

The witness Tom Kaugle gave evidence that the 2004 normal soccer season started in January 2004 and ended in August 2004 with semi finals and finals played at the end of August.

Tom Kaugle also gave further evidence that the 2005 normal soccer season started in January 2005. He did not say when the 2005 soccer season ended, but it is reasonable and logical to conclude that the 2005 soccer season also ended in August or September 2005.

Going by this evidence, then it cannot be true to say that the 2005 soccer season semi finals were played on Sunday 31st July 2005. In fact the court finds that the 2005 semi- finals were played on the 31st July 2005 is a false alibi concocted by Tom Kaugle and Benny Damien.

4. Demeanour of witnesses

The third test or principle is the demeanour of a witness in the witness box. The courts have decided many cases in the past on an application of this principle or test, examples of cases were these principles were discussed and applied are The State –v– Tauvar Avaka [2000] SC 595.

There were a number of inconsistencies in the evidence of the three state witnesses as I have found earlier. But such inconsistencies are explainable and do not render their evidence false. Similarly, I had the opportunity to observe and assess the demeanour of these State witnesses as they gave evidence in the witness box.

I assess their demeanour to be quite frank and satisfactory. Defence Counsel submits that they were shifty and evasive and therefore not truthful in their evidence. On the contrary, I find the State witnesses to be honest in the evidence they gave in court. Both gave very good explanations of their inconsistencies which I accept.

Of the three defence witnesses only Simon Tamis was a honest witness. However, I do not see any real relevance of him being called as a witness.

The accused appeared a very confident young man. He portrayed himself as a witness of truth and spoke very confidently. When answering questions either in cross-examination or in evidence in chief, the accused had a tendency to slightly pull his chair and lean slightly forward when answering all questions.

This showed that despite giving the impression and appearance of a very confident young man, the accused was quite shaky and therefore unconvincing in his evidence.

A factual matter which goes to his credibility as a witness is that when State witness Benny Kurum, took the witness box, the accused stood up from the dock where he was sitting and objected to Benny Kurum giving evidence. He did not allow his counsel to do that.

In his evidence in chief he explained, that he objected because the person who gave evidence as Benny Kurum was another person who had impersonated Benny Kurum. He identified this person as Nesue. His counsel failed to cross-examine state witnesses, on this allegation of some-one else impersonating himself as being Benny Kurum. A number of logical inferences can be drawn from this incident:

(a) The accused Benny Damien knows the witness Benny Kurum was there to give a true account of what happened, especially his identification of the accused, as being part of the rascal gang.

(b) The accused Benny Damien knows the family of the witness, Benny Kurum well. He is quite familiar with who Benny Kurum is.

72. The witness Tom Kaugle also showed glimpses of being very confident in some aspects of his evidence.

73. However, in many other aspects of his evidence he appeared unconvincing. He was uncertain and shifty in his evidence. Defence Counsel submitted the evidence of Tom Kaugle corroborated that of the accused Benny Damien perfectly.

74. In my view, many aspects of the evidence of Tom Kaugle and the accused, Benny Damien, are too perfect, for example, both gave very consistent evidence that the game last for two hours, having started at 2:00 pm and ending at 4:00 pm. Both men being senior soccer players ought to have known that a soccer game is usually played for 90 minutes. Both also gave evidence of what they were doing with reference to exact clock timings on Sunday 31st July 2005. They were almost onto the point of giving a minute by minute description of what they were doing on that Sunday 31 July 2005.

75. In my view both Tom Kaugle and Benny Damien gave false evidence here. Another false aspect of their evidence is their claim that the semi finals were played on Sunday 31st July 2005. The court finds that no semi finals were ever played on the 31st July 2005. The accused Benny Damien and his so called Team Captain, Tom Kaugle gave false evidence in this regard. Consequently, they cannot be described as witness of truth and honesty.

Application of Principles

76. Applying these tests or principles to the facts and circumstances of this case, I will have no hesitation at all in accepting the State's case as it is. That being so, I need to apply a further test or legal principle, before I proceed to act on the state's evidence. I apply this principle because the ultimate issue at trial of this case was one of identification. The question in this regard is usually whether the evidence purporting to identify an accused as the offender is sufficient and safe for the court to proceed to a conviction?

77. A useful summary of the principles of identification is taken from The State –v– John Beng [1976] PNGLR 471 and Jimmy Ono –v– The State [2002] SC 698. These principles were summarized by His Honour Kandakasi J in the cases of The State –v– Okata Talangahin [2004] (No. 1) N2581 and The State –v– Marety Ame Gaidi (No. 1) [2002] N2256. His Honour summarized these principles in this way and I respectfully adopt these principles as follows:

1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence.

2. A trial judge should warn himself as in any case here of the special need for caution before convicting on the correctness of the identification because for example:

(a) a convincing witness may be mistaken, or

(b) a number of witnesses may be mistaken;

3. Provided such a warning is given, no particular form of words need to be used;

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5. Identification and recognition may be reliable but one need to be cautious because there can be mistakes in even trying to identify close relatives and friends.

6. All these goes to the quality of evidence. If the quality of evidence is good, the identification may be reliable. If however, the quality is bad, the identification will be bad;

7. The quality of evidence may be poor if there is a fleeting glance or a longer observation made in poor conditioning and;

8. There should be an acquittal if the quality of the evidence is bad.

The Present Case

78. Having considered all of the above principles, I record the following relevant considerations:

(a) The three state witnesses gave clear and concise evidence; their demeanour was frank and sound. It was neither proven nor suggested that they had any motive for giving false evidence. They were honest witnesses of truth.

(b) Both state witnesses, Benny Kurum and Sammy Kurum were identifying someone they knew and recognized. They were locals of Vilelo and they were also identifying another local person also from Vilelo.

(c) The identification and recognition took place on a river bank in the bush. Although there were trees, vines and bushes, these did not block their view and recognition of the accused because:

(i) they knew and recognized the accused as a local from Vilelo and some-one who is married to a woman from the Wain District of Morobe, their home province.

(ii) The accused would share betelnuts and smokes with Benny and Sammy Kurum whenever he catches up with any of them.

(iii) The accused was recognized from the frontal position, when he was facing the direction of Benny and Sammy Kurum, Max Akia and others. Furthermore he was standing on a clear sandbank where there are no trees nor shrubs and wines on the sandbank, such as to block of their views of the accused.

(iv) Although the recognition was done in the bushes, there was ample lighting from the sun shinning through the leaves. This was not a fleeing glance of total a stranger, but a prolonged observation and look at a person who was known to all five persons who were identifying the accused.

(v) The time of the day in which the identification took place was between 3:00 pm and 4:00 pm. There were some minor inconsistencies in the estimation of the distance between the accused and those who identified and recognised him, the court finds that the distance between the parties was some 30 meters to 40 meters apart.

The State witnesses were standing on a 20 meter high slop and could easily look down upon the accused who was facing in their direction. They therefore had a frontal view of him.

(vi) Benny and Sammy Kurum could not identify the others, because either they were swimming in their river and had their heads and bodies in the rivers or were cooking chicken with their backs to Benny Kurum and the others.

(vii) Apart from recognizing and identifying the accused, Benny and Sammy Kurum also identified three bags, two belonging to their two sisters, and one belonging to their father as well as other properties along with the live chickens in the camp. The recognition of the three bags were sufficient to implicate the accused and connect him to the robbery.

(viii) The witnesses, both Benny Kurum and Sammy Kurum had no personal grudges or differences with Benny Damien such that they would have a motive to lie against him.

The accused himself admitted in evidence that he had no grudges or ill-will against Benny Kurum or Sammy Kurum.

(ix) Benny Kurum and Sammy Kurum nor their other companions had a pre-conceived and prejudicial mind to recognize and identify the accused Benny Damien at all costs.

It was argued by the defence that their father one Kurum Kuvi had suspected Benny Damien and had advised his sons of his suspicions before they set out to follow the footprints. It was argued that because of this pre-conceived mind the person who was recognized as carrying the gun was not Benny Damien but someone-else.

I reject this argument out right as being non sense and without factual basis, because both brothers independently gave evidence that their father one Kurum Kuvi was only told of them recognizing the accused Benny Damien after their return from following the track and footprints of the bandits and not before they set out to follow the footprints.

In light of the above, I conclude that the evidence of Benny Kurum and Sammy Kurum, the two state witnesses are honest, accurate and reliable.

I therefore find the identification evidence to be of high quality.

So far as the defence evidence is concerned, I find that to be difficult to believe. The evidence of the accused and his other witness one Tom Kaugle, was less credible than that of the state witnesses. The accused supported by Tom Kaugle stated that he could not have been involved in the robbery, as he was at the soccer pitch playing soccer as it was a semi finals day.

I have already found that semi finals were never played on the 31st July 2005. This was an outright lie concocted and perpetrated by both Benny Damien and Tom Kaugle to give credence to their false alibi story. I have already pointed out some inconsistencies and contradictions in the alibi story of the accused being at the soccer game on Sunday 31st July 2005.

Having regard to the principles of alibi set out by the Supreme Court in the case of John Jaminan –v– The State (No. 2) [1983] PNGLR 318, I find the quality of this alibi evidence to be very poor and the alibi, was in fact, false because:

(a) The accused was an unimpressive witness as his demeanour was poor.

(b) There were a lot of false aspects in his evidence.

(c) Tom Kaugle who was to corroborate the alibi of the accused was not a honest and frank witness either. He gave a lot of evidence which were outright lies and therefore false. A lot of his evidence was manufactured and concocted. He is a person who should not be believed at all. In fact he is a liar.

79. The evidence is now very clear. The accused was:

(a) not playing soccer (semi finals) on the Sunday 31st July 2005.

(b) was an active member of the gang of bandits that robbed one Kurum Kuvi on Sunday 31st July 2005 and stole from him K16,000.00 cash and other personal properties, worth K1980.00 together with live chickens.

80. I am therefore satisfied beyond reasonable doubt that:

(a) money and other personal properties are things which are capable of being stolen and were in fact stolen with violence.

(b) Benny Damien was an active member of a gang which held up Mr Kurum Kuvi and his children on Sunday 31st July 2005 and stole from them K16,000.00 in cash and other personal properties including live chickens.

(c) Benny Damien actively participated in this robbery and was not playing soccer on Sunday 31st July 2005. His claim of playing Soccer is a deliberate and outright lie.

81. All elements of the offence have been proven beyond reasonable doubt and a conviction is recorded against Benny Damien.

VERDICT

82. Benny Damien, having been indicted of one count of armed robbery under Section 386 of the Criminal Code is found guilty as charged and convicted accordingly.

______________________________

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused