N2305 

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 487 of 2002

THE STATE

V

BENNY MOIRI KAIRI
(the ‘Accused’)

Waigani: Davani, .J
2002: 8, 11, 22 November

EVIDENCE – Cross-Examination – Need to cross-examine on case which defence relies on – rule in Browne v Dunn – Principle of fairness applied.

EVIDENCE – Identification – circumstantial evidence – principles discussed – when it is safe to convict.

Cases cited:
Browne v Dunn [1893] 6 R 67 (HL)
Peakcok v the King (1911) 13 CLR 619
R v Hart [1932] 23 Cr App R 202
Papalaman v Nuakona [1973] N771
Reid v Kerr [1974] 9 SASR 367 at p374
Barca v the Queen (1975) 133 CLR 82; 50 ALJR 108
John Beng v the State [1977] PNGLR 115
State v Varimo [1978] PNGLR 62
State v Voeto [1978] PNGLR 119
State v Morris [1981] PNGLR 493 
Paulus Pawa v The State (1981) PNGLR 493
State v Awoda [1983] PNGLR 83
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
State v Marianno Wani Simon and Allan Oa Koroka N600 14 July 1987
State v Jupui Kapera N567
Luingi Yandasingi v the State [1995] PNGLR 268; SC474
The State and Rarua Willie CR 1548 11.1.02
The State and Toea Toby Lohia CR 35 of 2000 11.1.02
State v Simon Ganga [1994] PNGLR 323
State v Merriam [1994] PNGLR 109

Counsel:
J. Tabi for the State
S. Maliaki for the Accused

22 November 2002

DECISION
(on verdict)

Davani .J:	The accused is indicted with one count of Robbery laid pursuant to s. 386 of the Criminal Code Act (‘CCA’). The accused is alleged to have stolen the sum of K500.00 from the Big Rooster at Koki on the 23rd December 2001 when he, together with one other, armed with two home-made pistols, committed that offence.

Undisputed facts

These are that a Robbery did occur on 23rd December 2001 at the Koki Big Rooster. Two persons were involved. One person was tall and fair and appeared to be from the Gulf Province. He was about 167cm tall. He used a two-barrelled gun about 6 inches in length. This person took the money in the till.

The other person held up another teller. She said two male persons walked in, one jumped on the counter and held one cashier up. The other one who was wearing a woollen mask and also holding a gun, told her to open the cash register. After he took the money, he ran out the door and ran towards the POSF flats on the other side of the road. These flats are situated near the Koki Primary School and the Koki Salvation Army Hostel.

The evidence is that this person wore a black woollen mask which had slits for eyes. The cashier could see his eyes and that the left eye was bigger than the right eye. 

Disputed facts

The accused Benny Moiri Kairi is the person alleged to have worn the mask. He clearly has a disability in his left eye. The gun that was allegedly used by the robber was identified and tendered into evidence.

The cashier was adamant even in cross examination that she would not have mistaken the Accused for another person. Even when asked if she would recognize the Accused if there were five other people in the court room with one eye larger than the other she said she would recognize him by his height and his built. She also said he was facing her at the time the robbery was committed and so she could not have been mistaken.

Evidence

The court is familiar with the locality at which the offence was committed. Big Rooster is situated at Badili. The surroundings are the City Mission to the far right and the Andersons Foodland to the far left. Facing the Big Rooster across the road is the Koki Salvation Army Hostel, proceeding from the left is the Badili Scout Hall, the Koki Community School and the POSF flats. 

The Cashier said she saw the Accused run towards the POSF flats which are situated near the Koki Community School.

Policeman First Constable Michael Polo said that whilst he was at Koki Andersons attending on a complaint, he received a radio call from the Boroko (Operations) Police Station to attend to an armed robbery at Koki Big Rooster. He immediately proceeded there with another policeman. As soon as he arrived there, the two suspects were already making their getaway and on seeing the police, ran towards the new construction site at the POSF flats. He said he saw the Accused drop something. He then stopped the vehicle and his counterpart Constable Peter George then gave chase. From the vehicle, he could see the other suspect take off his T shirt, jump over the fence and run into the POSF flats. He searched the area and found a home-made gun and mask. He then heard Constable George fire two shots. After that he saw the Accused sit down and face Constable George. Constable George then walked up to him and took him down to the Police vehicle.

Constable Peter George also confirmed that he was with First Constable Michael Polo at Andersons Koki attending on a complaint when they received a radio call from the Boroko Police Station to attend to a robbery at the Big Rooster Koki Market. 

Constable George said he was still sitting in the Police vehicle when he saw the Accused on the hill sitting in the grass. He said he gave chase and as soon as he approached the Accused, the Accused started to run. That was when he fired one shot. But the Accused kept running. When Constable George fired the second shot, the Accused stopped. That was when Constable George apprehended him and took him to the police vehicle. 

The Accused said in evidence that he resides on Le Hunte Road with his parents. This property is located at section 32 allotment 38, Port Moresby. He said that in 1999 he suddenly developed an ailment to his left eye which left his left face paralysed thus affecting his left eye. He said that on 23 December 2001, he visited his friend at Koki Vocational Centre where they both drank beer until 3.00pm when he left. He said his friend’s name is Daniel and that Daniel is no longer in Port Moresby, having transferred. He said he was taking a short cut to his house from where his friend lives when he saw somebody run up the hill that he was on and throw something into the grass. He then decided to check what this person threw. When he did that, he saw the policeman run up. That was when he started running and he heard two gunshots. He stopped running for fear. He said he was then taken to the Badili Police Station.

In examination in chief he was asked what was thrown into the grass, he said it was a gun and a cap. However in cross-examination he said that he saw this person throw something into the grass and he then decided to check what it was. 

The evidence shows that the Accused was within the vicinity of the crime area when he was arrested. Other evidence also show that the robber who held up the cashier wore a mask with slits for the eyes and that she had clearly seen two eyes, and that the left eye was larger than the other. She also was adamant that it was the Accused who held her up because she could recognize him from his height, built and skin colour.

Analysis of the Law and Evidence

Although one cashier saw the robber, this robber had a mask over his face. This mask had slits. When the Accused was arrested he was, according to the Policeman’s evidence, running away. The evidence was that the robber ran towards the POSF Flats up towards the hill. This was where the policeman saw the Accused now before the court.

i.	circumstantial evidence

The evidence against the Accused as brought to the court by the State, is circumstantial.

The guiding principles on circumstantial evidence are well settled. These principles were stated by Miles J in State v Morris (1981) PNGLR 493 at 495 and relied on by Wilson J in State v Marianno Wani Simon and Allan Oa Koroka N600 14 July 1987. The learned judge said there;

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v the Queen (1975) 133 CLR 82; 50 ALJR 108:

"When the case against accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of accused’: Peacock v the King (1911) 13 C.L.R. 619 at p. 634… However, an 	inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding a prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.": Peacock v the King at p. 661.

These principles are well settled in Australia.

This principle or approach was adopted as the law in Papua New Guinea by Wilson J in State v Jupui Kapera N567 and by the Supreme Court in Paulus Pawa v The State (1981) PNGLR 498.

From an examination of this principle, two questions immediately arise:

1.	Does the evidence raise a reasonable and rational inference as to guilt?
2.	Is the evidence inconsistent with any reasonable hypothensis other than the guilt of the Accused?

The teller's evidence is that she is not mistaken as to who the robber is. Even then, this raises the issue of identification.

ii.	Principles of identification

Although counsel did not address this in their submissions, it is important that the court raise it. The principles of identification is well established in the case of John Beng v the State [1977] PNGLR 115. In that case, Kerney J said:

"What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime…position of the parties, their lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed his judgment as to identification." 

This was further held in the Supreme Court case of Luingi Yandasingi v the State [1995] PNGLR 268; SC 474 where Amet CJ, Kapi DCJ and Los .J on 6 December 1994 said that the quality of identification is established by the following:

"a.	whether the witness knew the accused before the event in question;
b.	the lighting conditions at the time;
c.	the distance between the witness and the accused at the time of the event in question;
d.	was there any object which may have obstructed the view of the accused."

I referred to those authorities in matters I deliberated on; the State and Rarua Willie CR 1548 of 2000 and the State and Toea Toby Lohia CR 35 of 2000, 11th January 2002.

In Rarua Willie and Toea Toby Lohia, the offence committed was wilful murder. The offence occurred in a matter of seconds on the Magi Highway, where a woman was shot. In that case, one of the victims had on several occasions, in the Accused person’s home, met with the Accused’s father, and had briefly seen the Accused. The other witness said he had seen the robber two years ago in a neighbouring village. One witness had told the court that when the gun was pointed at her, she was very panicky and frightened. She also said however that the robber was very close to her and that she could see him clearly. I found that evidence on identification, to be unsafe. This was discussed in the case of Papalamanan v Nuakona [1973] N771 where his Honour Prentice .J said:

"Where evidence of identity is given by a witness whose previous knowledge has not made him familiar with the appearance of the accused and where he was shown the accused alone as a suspect and has on that occasion first identified him, the conviction of the accused is not safe unless his evidence is proved by other evidence."

In this case, the first time the victims ever saw the robber was during the hold up. Having reviewed the law on the aspect of identification, it is clear that identification of the Accused as the robber, is not firmly established on the evidence. Therefore, it is not safe for the court to convict on that evidence alone.

iii.	The rule in Browne v Dunn

I will review all the other evidence before me, in light of the above rule.

The Accused, in response to the State’s evidence said that he was at a friend’s house drinking beer and was on his way back home when he was chased and arrested. However, this very important aspect of his evidence was not put to the witnesses for the State in cross-examination. This was because the Accused had not sought to rely on the defence of alibi. However, even if the defence of alibi was not relied on, counsel for the Accused should still ask witnesses for the State in cross-examination, matters now being raised by the Accused. That did not happen. This clearly breaches the rule in Browne v Dunn [1893] 6 R 67 (HL). For the benefit of the young Defence counsel, who was not aware of this rule, and because I had asked her and raised this in court, it is important that I set it out in full. Firstly, the essence of this rule is that the accused’s case should be put to the prosecution witness in cross-examination. In other words, it is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain. His Honor Hart .J, in the case Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at p.16, formulated the rule as follows:

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate the explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn [1893] 6 R 67 (HL)".

In R v Hart [1932] 23 Cr App R 202, the English court of Criminal Appeal dealt with a case involving the defence of alibi where the prosecution had failed to cross examine the defence witnesses on the alibi. Lord Chief Justice Hewart said at p207;

"In our opinion, if, on a crucial part of a case, the prosecution intends to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box, or at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted."

Whilst relying on that case, Wells .J said in Reid v Kerr [1974] 9 SASR 367 at p374, quoting an earlier unidentified judgement of his, puts the rule slightly different in these terms:

"It has always seemed to me that if some kind of implication is to be made against the witness, then, at some stage – ultimately – the precise nature of that imputation should be made clear to the witness so that he is given an opportunity to meet it and, if he can, explain it or destroy it…when all arts and devices of cross examination have been exhausted for the purpose of testing whether a particular witness merits adverse criticism, then, at some stage, and in some fair manner, he should be given the opportunity of meeting the implication and answering it."

Again in Browne v Dunn (supra) at p 374 the learned judge held:

"Speaking generally, it is essential to the fair conduct of a trial that a party should be put to each of its opponent witnesses in turn so much of his own case as concerns that particular witness, or in which that witness took some part. As a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so that he may have an opportunity of explanation…in the final analysis, it is manifestly unfair to leave unchallenged part of a witness’s evidence and then, through another witness, called by the side represented by the cross-examining counsel, to suggest something that is contrary to the first mentioned witness’s testimony or which has never been covered by him there has been a tendency to avoid the implications of Browne v Dunn, …I regard it as an essential characteristics of the fair trial that the principle embodied in the decision should be strictly adhered to."

These rules and principles have been applied in numerous cases here in Papua New Guinea, some of which are State v Simon Ganga [1994] PNGLR 323; State v Merriam [1994] PNGLR 109; State v Awoda [1983] PNGLR 83; State v Voeto [1978] PNGLR 119; and State v Varimo [1978] PNGLR 62.

As was said by Kaputin .J in State v Awoda (supra) "…it is in the interests of a fair trial that the defence must disclose its case at the commencement of the trial." 

In this case, defence said it was raising a general denial. That in itself is not a defence. He is in effect saying that he did not do it, but what he relies on in saying he did not do it, is not made known. It was not until cross-examination that the Accused then said he had been drinking at a friend’s house and was on his way home when he was apprehended by the police. Counsel must not conduct their cases in like manner. That is gross and sheer negligence by the lawyer.

There is no such thing as "trial by ambush" as Sakora .J said in State v Merriam (supra):

"Accordingly it is counsel’s duty in every case;

(a) 	to challenge every part of a witness’s evidence which runs contrary to his own instructions;
(b)	to put to the witness, in terms, any allegations against him, which must be made in proper conduct of the defence, and
(c)	to put to the witness’s counsel’s own case, insofar as the witness’s apparently able to assist with relevant matters, or would be so able, given the truth of counsel’s cases."

As Sevua .J said in State v Simon Ganga (supra) "It is obvious, in my view, that the defence counsel is under a duty to comply with the rules. Not only does this duty arise from his obligation to his client, but also his obligation to the court. He is under strict obligation to put his instructions to the prosecution in cross-examination, if the case his client relies on is consistent with his instructions…."

Having said that, the Accused’s explanation to the court is still very unsatisfactory for the following reasons:

1.	He said he went to visit his friend at Koki Vocational Centre to drink beer and then decided to take a short cut to his house at Le Hunt Road which is located between the Koki Market and the Andersons Foodland.

2.	He said he took a short cut but was caught by the police near the POSF Flats which is on the opposite side of where he lives, in front of the Big Rooster near where the Koki Salvation Centre and the POSF Flats are.

I can deduce from the facts that the Accused is lying. That if he had wanted to take a short cut, all he would have done was just walk from the Koki Vocational Centre which is near the Koki Market, to the front of the Koki Market, to his house at Le Hunte Road, a very short distance. He had no reason to be where the POSF Flats were and near the Koki Salvation Army, if he had been taking a short cut.

Furthermore, Defence Counsel has clearly failed to test his case in cross-examination, as discussed earlier. The Accused’s explanation is without merit.

Having reviewed the evidence and the law, I find the State has proven beyond reasonable doubt that it was the Accused who wore the black woollen mask with slits and who held up the cashier at the Big Rooster Koki, on 23 December 2001.

I find that based on the evidence, this is the only rational and reasonable inference and that it is inconsistent with any other hypothesis, other than guilt.

Verdict

I find the accused guilty of the offence of Armed Robbery.
_____________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Accused	:	Public Solicitor