N2697

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1341 of 2002

THE STATE

-v-

CAEDMON OMBARI KENO

Lae: Manuhu, AJ
2004: September 8, 9, 13, 15 & 29.

JUDGMENT ON VERDICT

Criminal law – Particular offence – Armed robbery – Identification.

No Cases cited:

Counsel:
Mr. R. Gangkarch, for the State.
Ms. S. Maliaki, for the Accused.

29th September 2004.

MANUHU, AJ: The Accused, Caedmon Ombari Keno, is charged that he on 24th July 2002 at East Taraka, stole from one Bernard Mwamubu with threats of violence a Mitsubishi L200 Double Cab Motor Vehicle, white in colour, registration number CAI 833, the property of Lae City of Lae City Authority.

The Accused does not deny that the robbery took place. At about 5.00 pm on the day in question, the victim had just dropped off a workmate at his house and was on his way out. As he was about to reach the main road, some armed men surrounded and threatened him with dangerous weapons, ordered him out and drove away in his vehicle. All the armed men were masked. The victim was not able to recognize anyone but one of them was tall. The vehicle was driven away towards Bumayong.

Police at Tent City were immediately notified and, according to policemen Michael Parais and Lawrence Suakai, they organized a road block at the Bumayong PTC College junction. A few minutes later, they saw the stolen vehicle sped into Igam Barracks Road. They proceeded after the stolen vehicle which was eventually abandoned at Igam Market. During the chase up Igam Road, the police vehicle went as close as 50 meters to the stolen vehicle. At the market, the Accused was the last person to leave the vehicle. He was chased immediately and apprehended.

It should be noted that the victim’s evidence is incapable of sustaining a conviction against the Accused. The victim was only able to say that one armed men, the one who drove the vehicle, was tall. The Accused is tall. But the victim did not recognize the armed men and cannot remember what they were wearing. He cannot remember what the driver, allegedly the Accused, was wearing. He was understandably shocked from the experience. Consequently, the evidence of Parais and Suakai are crucial. Since Parais and Suakai do not know who the armed men were, it is crucial that their evidence must connect the Accused to the stolen vehicle beyond reasonable doubt. It has to be shown that the Accused was the driver of the stolen vehicle, as alleged, or, was a passenger in the stolen vehicle.

Unfortunately, there is no finger print evidence. I do not know why no one took such initiative. One way or the other, any finger print evidence would have greatly assisted the court and the judicial process. The prosecution was, however, able to adduce evidence that the Accused was the driver of the stolen vehicle. He was the last person to leave the vehicle. Parais said he had his eyes on the Accused all the time. When he got off the police vehicle at the market, the Accused was 50 to 100 meters into the bushes. However, according to Suakai, when they arrived at the abandoned vehicle, no one was there. The Accused was seen about 200 meters in the bushes. From this evidence, I was of the impression that the Accused was caught within 200 to 300 meters of Igam market.

The Accused gave sworn evidence. His evidence indicated that the police vehicle did not stop at the market. It was driven onto a gravel road for a distance of about 1000 meters before he was located and apprehended. I noted during the visit of the scene that the surrounding areas, especially where the Accused was apprehended, had gardens everywhere. It was not as bushy as the area immediately around the market. Consequently, the possibility of arresting a wrong person is a reasonable possibility. My initial impression was thereby set aside. The Accused person’s denial made more sense to me.

I also watched how Parais and Suakai gave evidence. I did not believe Parais when he said that the Accused was not assaulted at all at the time of his apprehension. This impression was confirmed when Suakai initially admitted that the Accused was assaulted. Then, when Suakai realized the dangers of his answers he became evasive about the assault and then took a long time answering questions. I was, accordingly, already unimpressed with Parais and Suakai at the close of the prosecution’s case. However, I refused to acquit the Accused following the no case to answer submission only because I was not permitted at that stage to weigh the evidence, which involves assessing the witness’s credibility as well.

The rejection of the evidence of Parais and Suakai means that the Accused cannot be linked to the stolen vehicle. I am of the view that when police pursued the stolen vehicle, it was already a fair distance up Igam Road. The policemen then lost sight of the stolen vehicle as it negotiated the bushy and slopy bend towards Igam market. When the police vehicle arrived at the market the robbers were already gone. This prompted the police vehicle to drive onto the gravel road for about 1000 meters from the market before the Accused was sighted upon a bush track leading into the gravel road. The Accused was thereby apprehended.

In all the circumstances, the linking of the Accused to the stolen vehicle is not proved beyond reasonable doubt. Consequently, I cannot be satisfied that the Accused robbed the victim of his vehicle. I find him not guilty and acquit him.

Verdict	:	Not Guilty.
___________________________________________________________________
Lawyer for the State				:		Public Prosecutor
Lawyer for the Accused			:		Public Solicitor