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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO.907 of 2001
THE STATE
RAPHAEL KEWANGU
WEWAK: KANDAKASI, J.
2002: 20th, 21st February
12th March
DECISION ON VERDICT
CRIMINAL LAW - PRACTICE & PROCEDURE - Key prosecution evidence not in hand up brief – No prior notice of the availability of additional witnesses and evidence given – Statement done on day of trial after the lapse of two years – Evidence rejected as recent inventions and unreliable – Criminal Practice Rules 1987 O.4 r.4
CRIMINAL LAW - Verdict – Armed robbery - Robbery of a PMV on a highway – Accused not positively identified by any eyewitness – Police claiming to have acted on unspecified leads recovered weapons and items allegedly used and stolen in the robbery – No prior notice of these evidence given to the defence – Statement of witnesses done on the day of the trial after the lapse of two years – Evidence rejected has recent invention and unreliable – Other evidence failing to establish the charge beyond any reasonable doubt – Verdict of not guilty returned – Criminal Code s.386 (1) and (2).
Facts:
The accused was charged with one count of armed robbery of a PMV on a highway. None of the evidence called by the State positively identified him as one of the offenders. The States case was therefore circumstantial.
Eyewitnesses who were passengers and victims of the robbery described the robbers as youths. The accused was in his mid 30s. The State called two last minute witnesses who did not form part of the State’s case earlier who gave evidence of guns and other items that may have been used and stolen in the robbery but they failed to connect them to the robbery. No notice of the availability of these witnesses and their evidence was given to the defence.
Held:
Cases cited:
John Jaminan v. The State (N0.2) [1983] PNGLR 318
Browne v Dunn (1893) 6 R 67(HL)
Garitau bonu & Rosanna Bonu v. The State SC528
Counsel:
Mr. M. Ruari for the State
Mr. M. Mwawesi for the Accused
12th March 2002
KANDAKASI J: I delivered an oral judgement on the 21st of February 2002 and promised to provided a written judgement on it because of the issues raised in the case for future reference purposes. This is the judgement I promised.
The Allegation or Charge
The defendant pleaded not guilty to one charge of armed robbery presented against him on Wednesday the 20th of February 2002, under section 386 (1), (2) (a) and (b) of the Criminal Code.
The State’ allegation was that the defendant was part of a gang that held up a PMV at Maringe which was heading for Maprik from Wewak on the 3rd of February 2000. It was further alleged that the defendant took cash and goods of value totalling K1,982.95.00 from the people on the vehicle at the time.
The State’s Evidence
In a bid to prove the charge against the defendant the State called a total of 5 witnesses. The first witness was a Bruce Jakpa. He was the crew in the PMV at the time of the robbery. He spoke of after leaving Wewak, they were going up a hill slowly at Maringe. That is when 4 people, two armed respectively with an home made shotgun and a factory made shotgun, while the other two were armed with bush knives, jumped out of their hiding and held them up. They called for money to be given to them and failing that, they took personal belongings the people in the vehicle had with them at that time. This witness lost a shirt, which he was not wearing that time, but had some money in it. This happened between 5:00 pm and 6:00 pm.
He described the robbers as young boys or youths. They were not fit and strong but were too small. Under re-examination he said they looked so young in comparison to him. He said upon seeing them, he shook his head, which I take to mean in disbelieve that they were being held up by such people. He was however, not able to clearly see the face of any one of them as they were all masked and it was getting dark. He described the musk in terms of one being a woollen white hat and the others scuffs.
After the robbery, he said they drove to Yangoru Police Station and reported the matter to Police. That was the end of his evidence.
The witness did not say how old he was. According to my observation, I take him to be in his 30s or if not, into his early 40s.
The second State witness was a Titus Fafungian. He was also a passenger in the back try of the PMV. He gave evidence in terms similar to that of the first witness. He described the robbers as some short and others tall and could not do any better than that, as it was getting dark. He said all four of the robbers wore red masks or something over their faces. But under re-examination he said only one of the musk’s worn was red and confirmed the robbers were all youths. When asked further in re-examination, this witness said the robbers were not community school age but around high school age. He too lost some personal items in the robbery together with K20.00 in cash, which were not recovered at all.
The next witness for the State was Paul Lemu Diat. He was also a passenger in the PMV in the cabin between the driver and the crew. He gave an account similar to that of the first two. He too lost some personal items to the robbers consisting of a green and black mountain bag with no distinguishing feature(s), a calculator he bought that day in Wewak town, a 10 kg rice bag, a 12 packs laundry soap and about 4 bathing soap. He spoke of having recovered the bag and part of its contents including his calculator and some soap. That was through a policeman that he identified him only as a "David." He did not say when he recovered them. He was not too sure of his calculator’s brand or make but on a refreshing of his memory by his statement to police he said it was a Casio brand.
He described one of the robbers who came to him and stole from him had a factory made shotgun. That robber’s clothing was described as black trousers, despite suggestions in cross-examination of Jean trousers. He also said the robber wore a black "T" shirt for a shirt. He spoke also of his robber wearing a black mask without any further descriptions of it. He also spoke of a black woollen cap or hat being worn by the robber. Other than that, he was not able to positively identify any of the robbers. He was not even able to say whether the robbers were young or old.
The fourth State witness was a Mason Takura, who is a constable of the Police Force attached to general duties at Yangoru Police Station. He has been a policeman since 1993. He confirmed a PMV load of passengers came about 6:30 pm on the 3rd of February 1999 and reported of an armed robbery along the Maprik, Wewak Highway. The Station commander acted on that report by getting statements of the potential witnesses and then organized a number of policemen including the witnesses to go after the robbers.
The police left for the scene of the crime, Agama on the Maprik side along the Wewak Maprik Higway, at about 9:00 to 10:00 pm. From there he says, based on good leads the police eventually ended up at the defendant’s village after passing through a number of other villages. He did not specify the nature and or the kinds of leads the police received.
The police party arrived at the defendant’s village, Holik at between 11:00 pm and 3:00 am the next day (4th February). He said it takes about 2 hours walking to reach Holik from where the alleged robbery took place. They parked the police vehicle on the side of the road and walked into the village. As they approached the village, he saw a number of men sitting in a circle. They were there drinking alcohol, described as "OP-Doop." Then as he and his colleagues moved closer to the group of men, some of them saw them and started to run away in all directions. At that time he said he saw the defendant holding onto something and run toward the back of a house. So he ran after him and came face to face with him and found that he had a white bag, a 50 kg stock feed bag, he got that things off from him.
The witness went on to say that once he got the bag, he flashed a torch light into it and found a factory made shotgun and a home made shotgun. On through checking, he said he found that the guns were wet which was consistent with rain in the area that night. With the assistance of a constable Sali, he got hold of the guns and bag and captured the defendant. The defendant was then taken to the police vehicle and eventually Maprik Police Station, where he was arrested and charged in connection with the robbery.
The witness also said later the same day (4th February), police searched a Lunen’s house and discovered a green mountain bag under his bed. This was done without a search warrant as the police according to the witness was on hot pursuit. Upon opening the bag, he found some laundry soap, a calculator and woollen red coloured cap. These items were also bit wet and they together with the others including the guns, were handed over to the arresting officer. Later, the green mountain bag was handed back to the owner. Only the guns were produced in Court and admitted into evidence as exhibits "A" and "B." None of the other items were produced in Court either has exhibits or merely as items for identification.
The witness stated that because he is a local policeman in the area he knows the defendant very well. He went on to say the persons whose house was searched, Lunen was a father or an uncle to the defendant.
This witness did not give a statement as to his part leading to the arrest of the defendant. Yet he accepted suggestions that his evidence was important but was not recorded in the hand up brief or even part of the State’s case until the morning of the trial. When asked why that was the case, he said the arresting officer did not ask for his statement. The question leading to that answer was a very simple one but the witness treated it as if it was a difficult one and even asked counsel to repeat the question.
The State’s final witness was another policeman as well. He was Constable Stephen Sali. He is the police who went with constable Takura to Holik and apprehended the defendant. He too did not provide a statement of his part in the process leading up to the arrest of the defendant for the same reasons given by constable Takura. Therefore, the State’s case earlier proceeded without any statement from him or Constable Takura until the day of the trial at the request of the State Prosecutor.
This witness’ evidence is in terms similar to that of Constable Takura’s but with some inconsistencies and or variations. These are, first, that it was not raining during the time of the apprehension of the defendant. Secondly, a hurricane lamp was used to see or discover the contents of the bag taken of from the defendant as opposed to using a torchlight, according to constable Takura. Thirdly, the guns and the other items were taken from the accused house and not from his person.
Defence Evidence
The defendant took the stand and gave a sworn testimony in relation to the charge against him. He confirmed the police got to his village, Holik late in the night. He also confirms that both a home made shotgun and a factory made shotgun were taken from his possession. He said however that, they were taken off from his house and not on him. He also confirmed that police took a mountain bag from his uncle, Lunen’s house. He differed however in the following respects.
He went to Wewak town on the 3rd of February 1999 and returned later in the afternoon. He had with him a green mountain bag, in which he carried some alcoholic drinks he described as "OP" and other personal belongings. After going to his own house, he went to his uncle’s house which was next to his and picked up a factory made shotgun and an home made gun to fix the factory made shotgun which, spring had come off. He then put the guns in his house as it was getting dark to fix the next day under daylight.
He then went outside and joined other men or boys from the village who were drinking until the drinks ran out. Some of the boys went looking for black market while him and the others stayed on and were drinking homebrew or "stem." While they were drinking away, they did not see the police come until the police started to open fire. This caused the boys to run in all directions for cover and to run away from the police. But he stayed on in front of his uncle’s house.
Police were not happy with the man running away and they started bashing up others that came into contact with them, including him. Upon seeing the guns in his house they asked him about a robbery at Angama in the afternoon of the 3rd of February. As he knew nothing about the robbery, he told them, he knew nothing about it. At about the same time, he could see the police search his uncle, Peter Piramo’s house and take some things from there.
He was then apprehended and taken to a waiting police vehicle. When he got to the police vehicle, he saw some of his fellow villagers and drinking mates. From there he and his friends were taken to the Maprik Police Station, where he and his friends were subjected to further beatings. Most of those who were taken to the police station were released except for him. He was subjected to further beatings and was asked about the guns and the other things that they took from his and his uncle’s houses.
A formal record of interview was then conducted. He chose to remain silent in relation to a number of questions because he did not want to incriminate against himself. In respect of a few others, he said he was forced to give answers to some of the questions that were put to him, as the police wanted him to answer them. Subsequently, he was arrest and charge for the alleged robbery.
Assessment and Finding on Facts
I reminded myself that under our system of criminal justice, the State always as the burden of proving beyond any reasonable doubt, the guilt of an accused person. This because has the Supreme Court per Pratt J. in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at p.323 said:
"At the end of the day the position is as always, namely: has the prosecution proved its case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and/or the defence witnesses a chink has been made in the prosecution armour, be it through a doubt concerning identification, or the claim of alibi for example, then a verdict must be returned for the accused."
That was in the context of a belated claim of the defence of alibi. Mr. Justice Pratt also expressed the view that the State’s burden to prove beyond any reasonable doubt includes the need to disprove the existence of any defence an accused person may have.
As may be apparent from this, the State has the burden to prove beyond any reasonable doubt throughout the whole case. That means in my view that, a trial judge must first be satisfied that the evidence produced by the State does establish a prima facie case against the defendant. If that is done, only then should any evidence called for the defence be considered.
In the present case a careful consideration of the State’s evidence revealed a number of serious holes in the State’s care. The first was in the area of identity, which was the main issue for trial. The three eyewitnesses to the alleged robbery identified their robbers as 4 youths and to use the description given by one of these witnesses, the robbers were passed primary but high school age. The State has arrested and brought before the Court an adult person in his 30s or 40s with some white hair appearing. On the basis of that, I was not satisfied that the State had identified the defendant has one of the person’s involved in the alleged robbery.
Secondly, none of the items, including the guns that were admitted into evidence as exhibit "A" and "B" were shown to any of the eyewitnesses to identify them as those used for the robbery or stolen in the robbery. Apart from the guns, the other items allegedly taken from the defendant were not produced in Court to prove that those were in fact the items that were used and or stolen in the robbery. The evidence produced by the State also failed to connect those items to the robbery either has being used in the robbery or stolen from the victims. This in term meant that there was a lack of evidence connecting the accused to a crime that was allegedly committed some distance away, several hours before the defendant was apprehended at his village.
Thirdly, the last two witnesses that were called for the State were not persons from whom statements were obtained from to bring the initial charges against the defendant. No prior notice of the availability of these witnesses and their evidence was given to the defendant. The defendant’s counsel was notified of the existence of these witnesses and their evidence on the date of the trial. This is no different to a case of an accused person giving belated notice of an alibi.
The law in respect of alibi evidence is clear. Where an accused fails to put in cross–examination and or gives belated notice of an alibi and calls evidence on that, such evidence should be seen as recent inventions and as unreliable. This stems from well-known authorities like that of Browne v Dunn (1893) 6 R 67(HL). The position was clearly spelt out in the case of John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 by Bredmeyer J in these terms:
"Firstly, the alibi was never put to the key State witnesses particularly the prosecutrix and Maria who gave evidence of being together with the accused in the hotel lounge and in room 2 in the early part of the evening, nor to the prosecutrix that she did not have sex with the accused, that she was mistaken as to the identity of the man who had sex with her, or that she invented the encounter. The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] PNGLR 62 (Prentice J) and The State v. Manasseh Voeto [1978] PNGLR 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused is reduced. I am not blaming Mr Narokobi specifically for this failure. It is possible that his instructions changed during the course of the trial from consent to alibi. I say that because Mr Narokobi cross-examined the prosecutrix at length on consent not on the question of identity. Later in the trial the defence of alibi was still not revealed by the cross-examination of the prosecution witnesses.
Secondly, the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was "unsafe and unsatisfactory", it is a factor against the accused."
In that case, Mr. Jaminan raised the defence of alibi to a multiple charge of rape. It seems he raised the issue of consent and that led to his trial. But during the trial, he introduced evidence of being else where from the scene of the alleged offences. He failed to give notice of that to the prosecution and also failed to put that fact to the State’s witnesses in cross-examination. Ultimately, therefore his claim of alibi was rejected both as unreliable and as recent inventions.
This is what happens to an accused person who fails to put the prosecution on notice of its defence and evidence that may contradict or rebut any evidence the prosecution may call. Both counsel in the present case correctly agree in my view that, the same should apply against the State who fails to give the defence notice of critical evidence against an accused person. If the State fails to give such notice and call surprised witnesses and introduce totally new evidence, it amounts to nothing short of an unfair trial. This is because, the accused has not been sufficiently notify of the case against him before hand so that he could consider his position and decided to either deny or admit the charge against him before he is tried. Such a practice, if allowed would in my view, amount to a breach of the s. 37(3) and (4) of the Constitution.
On these basis, I rejected the evidence of the last two State witnesses’ evidence as recent inventions and unreliable. These witnesses were called after the State called all its other witnesses whose statements had been provided to the defence. At the end of that evidence the State was not able to build a case against the accused. It therefore, decided to call the last two witnesses. They gave evidence that were critical to the prosecutions case subject however to the inconsistencies I have earlier mentioned. No satisfactory explanation was given as to why their statements or evidence could not be secured and become part of the hand up brief. The only explanation offered was that the arresting officer did not invite the witnesses to provided their statements. This caused me also to question how did the State manage to connect the accused to the alleged robbery given the eyewitnesses’ evidence and the lack of any positive identification of the accused as one of the robbers.
Without the last two state witnesses’ evidence, the State failed to establish the charge against the accused. Since the State’s
case was purely circumstantial, I was simply not satisfied that the only inference open to me on the evidence presented, even inclusive
of the last two State witnesses’ evidence, was as to the guilt of the accused. Instead, I have grave doubts as to his guilty.
In these circumstances, the law as was stated in a large number of cases such as Garitau Bonu & Rosanna Bonu v. The State SC528, I could not return a verdict of guilt against the accused. I therefore, returned a verdict of not guilty.
_______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor
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