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Kirimota v State [2006] PGSC 18; SC847 (8 September 2006)

SC847

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 14 OF 2005

BETWEEN:

BARNABAS KIRIMOTA
Appellant

AND:

THE STATE
Respondent

Waigani: Kapi CJ, Lenalia & Gabi JJ
2006: 28 April, 8 September

DECISION

CRIMINAL LAW - Evidence - By- Standers told state witnesses that offender hiding in the bushes - By-standers not called to give evidence - No evidence to connect the offenders from the scene of the crime and the location where the appellant was apprehended - Verdict unsafe and unsatisfactory - Conviction and sentence quashed - Appeal allowed and appellant discharged forthwith.

Counsel:
B. Kirimota, in person
R. Auka, for the State

8 September, 2006

1. BY THE COURT: The appellant was charged under the Criminal Code Act for attempted robbery and unlawful use of a motor vehicle. He pleaded not guilty so a trial was conducted. At the end of the trial, he was found guilty and sentenced to nine (9) years for attempted robbery and two (2) years for unlawful use of the motor vehicle.

Facts

2. It was alleged that at about 9:30 am on 16 February, 2004, the appellant with three (3) others were in a stolen vehicle. They drove to the residence of William Nanadai on Nilkare Avenue at Gordon 5 and attempted to block him in while he was pulling out of his residence in his vehicle. The appellant ran at him and pointed a factory made pistol at him. The victim, William Nanadai, sensing danger avoided the appellant by reversing out violently and drove away.

3. The offender and the other three (3) suspects then got into the stolen vehicle and pursued him. While pursuing the victim, they ran into a power pole. They abandoned the stolen vehicle and fled. The appellant was arrested about an hour later and charged. He appealed against conviction and sentence.

Grounds of Appeal

4. The grounds of appeal are:

"1. That the trial judge erred in law in his conviction on the uncorroborated and contradictory evidence.

2. The trial judge erred in law in convicting without clear lead evidence."

5. The issue during the trial was identification. The State’s evidence on identification was given by William Nanadai and Michael Morea. The appellant denied involvement in the attempted robbery and said that he was on his way to the Court House to pick up a death certificate when he was arrested by mistake. The trial charge found him guilty. He concluded thus:

"He was seen at the robbery earlier. He was seen running away and he was caught soon after. I do not consider the accused’s evidence as having any weight. At any rate, it does not cause any doubt in my mind about his identity."

6. The case for the appellant is that the by-stander or the gardeners, who told Michael Morea that the appellant was hiding in the bushes, were not called to give evidence at the trial.

7. In examination in chief Michael Morea said:

"Mr. Olewale: After the man with the pistol fled the area, what did you do?

A: I closed the gate. After that I pursued them. I ran after them. When I was going along the road, the CID vehicle stopped. I got on and when we were going, that person was hiding near the bush. Those people who were making gardens, they called out, those are the ones, one got on a vehicle while the other hid in the bushes. While we were standing on the road, the CID Officer came out of the car; the person just put up his hands like this and then came out of the bushes". (Emphasis added).

8. It is clear that none of the by-standers or the gardeners on the hills gave evidence. Those persons who saw one of the offenders ran into the bushes to hide did not give evidence. There is no evidence to connect the offenders from the scene where they bumped the light pole and the location where the appellant was apprehended. The trial judge convicted the appellant on Michael Morea’s evidence. We are of the view that Mr. Morea’s evidence that they were told by the by-standers or gardeners on the hill that the appellant was hiding in the bushes is hearsay. The learned trial judge committed an error in that there was no evidence before the Court that the appellant ran away from the scene of the crime and hid in the bushes. The appellant gave the explanation that he was on his way to the District Court and was using the bush for toilet. In the circumstances, we find that the verdict is unsafe and unsatisfactory. We, therefore, allow the appeal and quash the conviction and sentence and discharge the appellant forthwith.

____________________________________________________

B. Kirimota: The Appellant in Person
The Public prosecutor: Lawyers for the Respondent