N2959

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 972 of 2004

THE STATE

-V-

ISMAEL PAVO WRAKUHAU (No.1)

WEWAK: 	KANDAKASI, J.
2005: 06th, 09th and 26th September

CRIMINAL LAW — Verdict – Trial by admission into evidence by consent of accused, prosecutions witness statements and record of interview – Appropriateness of practice considered – Prosecution case built on circumstantial evidence – Prima facie case established against accused – Accused claiming a belated alibi and failing to rebut prima facie case against him – Guilty verdict returned.

Cases cited:
The State v. Murray William, Frank William and Moses William (No 1) (Unreported judgment delivered on 28/04/04) N2556.
The State v. Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (Unreported judgment delivered on 16/10/01) N2298.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
Epeli Davinga v. The State [1995] PNGLR 263.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
The State v. Luke Sitban (Unreported judgment delivered on 07/06/04) N2572.
The State v. Marety Ame Gaidi (01/08/02) N2256.
Jimmy Ono v. The State (04/10/02) SC698.
Masolyau Piakali v. The State (13/12/04) SC771.

Counsels:
Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

09th September 2005

KANDAKASI J:	You stand charge before this Court with one count of armed robbery contrary to s. 386 of the Criminal Code. This followed a presentation on the 06th of this month, the indictment charging you. 

Preliminaries

The State presented the same indictment before my brother Justice Jalina on 14th June 2005. The re-presentation of the indictment followed the Court’s refusal to proceed on what was already presented before Justice Jalina, because the trial commenced thereby before him was aborted on His Honour’s disqualification. 

In The State v Murray William, Frank William and Moses William (No 1), I discussed the relevant principles supporting this approach. I need not repeat them here save only to say that, what happened before my brother Justice Jalina is not binding on me as the trial that commenced before His Honour was aborted. 

The Evidence and Findings of Fact

Now turning to the trial that was conducted and completed before me, I note that the State’s case consists only of its witnesses’ statements admitted into evidence with your consent. The statements in evidence are the statements of:

1.	Francis Nawafe dated 26th November 2003 – Exhibit "A";
2.	Vincent Bowi dated 26th November 2003 – Exhibit "B";
3.	Robert Bowi dated 27th November 2003 – Exhibit "C";
4.	Samuel Saren dated 01st December 2003 – Exhibit "D";
5.	Paul Edipau dated 12th January 2004 – Exhibit "E";
6.	Stenet Wohuienen dated 05th of December 2003 – Exhibit "G";
7.	Sakawar Kasieng undated – Exhibit "H";

In addition to these statements, the State also admitted into evidence, both the Pidgin and English versions of your record of interview with the Police conducted on 06th of January 2004 (wrongly stated as 2003) as Exhibit "F1" and "F2" respectively. Further, in much the same way, the State had admitted into evidence a copy of an indemnity receipt, dated 13th January 2004 (Exhibit "I"), confirming the receipt of a substantial amount of cash recovered from the robbery you allegedly committed.

The State’s evidence show and I find as facts that, there was an armed gang robbery on 06th November 2003 at Boem and Sara Villages which are in the Yangoru District of this Province. The gang consisted of 6 men all armed with guns and bush knives. They held up and robbed a Francis Nawafe and the occupants of a motor vehicle he was driving on that day along the Sepik Highway. The items robbed from the victims of the offense consisted of K317, 000 in cash, a Winchester Shotgun, 50 kilograms of dried vanilla beans and other properties. Police heard about the robbery and carried out investigations, which resulted in the arrest of three people, you, a David Ningi Lawaii and a Lukas Haunare. Following your arrests, the Police recovered from you three man, K19, 000.00 cash, a shotgun and 5 kilograms of dried vanilla beans.

The main victim, Mr. Francis Nawafe identified two men namely Lucas Haunare and David Ningi Lawaii as being involved in the commission of the offence. He states that he knew these men long before the commission of the offence. Further, he says on the Police questioning Lucas Hanuare, he told the police and him the names of the other men involved in the robbery. Mr. Lucas Hanuare named you as one of those involved. Samuel Saren’s statement (exhibit "D") corroborates that evidence by saying that on 7th November 2003, he accompanied you and a Kuku Cletus one of the persons also involved in the robbery, to Yangoru Station. He says, Kuku Cletus informed him of the robbery carried out by him with you and the others. He also states that, you and Kuku started a drinking spree from the 7th and finished on Monday 10th November 2003. The statement of Sakawar Kasieng is in similar terms as far as your involvement in the robbery is concerned.

The statement of Stenet Wohuienen (exhibit "G") states amongst others that, he in the company of other police officers went and apprehended you on 5th December 2003 in relation to the robbery. He says further that, at the time of your apprehension, he recovered from you K700.00 in cash, all in K50.00 notes and some clothes that were stolen in the robbery. Further, he states that, your wife informed him at the time of your apprehension that, you gave her and she spent K150.00.

Your testimony simply is that, you were in your vanilla garden with two of your sisters on the day of the offence and the following day as well. Thereafter, you say you went to your wife’s village to take her back after she ran away from you because of your beating her. You tried to return to your village but your father-in-law persuaded you to do some unspecified work for him. Therefore, you remained in his village, where the Police came and arrested you. 

At the time of your arrest, you said Police beat you up severely and forced you to give some money. There is no medical or other evidence supporting this aspect of your testimony. Continuing with your testimony, you say, on seeing what the Police were doing to you, and to avoid you being killed, your wife gave them K700.00. Police said to you that, that was part of the stolen money but you say that came from the sale of your vanilla. You state further that vanilla prices were very good at the time, fetching about K700.00 per kilogram.

By virtue of your consenting to the State’s witness’s statements going into evidence, you decided not and you in fact failed to put your case to the prosecution witnesses. In effect therefore, you accepted their evidence and facts disclosed by those evidence. Where that is the case, the law is very clear as to what should be the outcome of that.

In The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani, I had a similar situation as in your case. I discussed the relevant principles, which I find are relevant and applicable here, in the following terms:

"It is clear law by virtue of the rule in Browne v. Dunn (1893) 6 R 67 (HL), that unless a party has put his case or evidence in cross-examination to the other side, he or she is not at liberty to call evidence in rebuttal. This is to allow for a fair play in a trial so that in fairness, one party can comment or other wise respond to the others evidence. If evidence is called in breach of that rule, the Court may place little or no weight on such evidence before it: see The State v. Ogadi Minjipa [1977] PNGLR 293, and The State v. Saka Varimo [1978] PNGLR 62.

Hence it means, in this case that, after having agreed to an admission into evidence, evidence going against yourselves including your own respective records of interviews, you all were not at any liberty, in my view, to call evidence in rebuttal. The reason for that is simple. When you all agreed to an admission into evidence all of the State’s evidence in the form presented, you in effect told the Court that there was no contest on the evidence thus presented. … By your own conduct, you chose not to test the prosecution’s case and in fairness put your respective cases to the prosecution, in line with the principle in Brown v. Dunn (supra). As a result, you all were at no liberty to call evidence in rebuttal of the prosecution’s case, per the evidence you agreed to. Nevertheless, you did call evidence … It would be most unfair for me to accept your oral evidence, when in fairness you did not put the effect of your evidence to the State’s witness. Besides, it will run contrary to your own acceptance of the State’s evidence as being correct by consenting to their admission and not taking any issue on them.

At the same time, I note that, it is also clear law that, just because the whole or part of a party’s evidence has been admitted into evidence by consent of a party or is not rebutted in any way, does not automatically follow that the court must accept it and act on it. Instead, the Court has the duty to assess the evidence and make a finding as to whether the evidence presented is credible and is of such weight that it can safely be acted upon. This means that, in the context of a criminal case, the court must assess the evidence and then decided if the evidence establishes the prosecution’s case beyond any reasonable doubt. If the court is satisfied that the evidence does establish the charge or indictment presented beyond any reasonable doubt, it must return a guilty verdict. If however, the evidence falls short of that, a not guilty verdict must be returned. See The State v. Kauva Lavau & Kamo Kauva ( unreported judgment 26/09/96) N1523, for an example of a court doing that."

I applied these principles in the case of The State v. Kevin Anis and Martin Ningigan. I have since become aware of the judgment of the Supreme Court in Epeli Davinga v. The State. That decision did not hold against the practice of admitting into evidence state witnesses statements with the consent of an accused. The decision concerns the effect of that on the burden of proof particularly in relation to a proper raising of an alibi as a defence to a charge against an accused person. There, the Supreme Court held that, simply because an accused has consented to an admission into evidence the prosecution witnesses’ statements, it does not follow that the burden of proof shifts to an accused who raises an alibi. Instead, the burden remains with the State and the State must discharge that burden in the usual way before an accused could be called to give his evidence in his defence.

Decision

In your case, you consented to admission into evidence all of the statements and other evidence before the Court for the State. You did not raise the defence of alibi, being contend as you were, only to say that you were not involved. Therefore, the issue for trial was only identification. At the end of the State’s case, you made a no case submission saying, the evidence admitted for the State failed to establish a prima facie case against you. The Court ruled against you on that submission saying the evidence discloses a prima facie case against you. You then went into evidence in a bid to rebut the prima facie case against you.

In your evidence, you raised an alibi of being at your vanilla garden with two of your sisters on the day of the robbery. In so doing, you suggested that, you were not at the scene of the crime committing the offence. You did not disclose this part of your evidence and or claim in your record of interview. Also, you did not give notice of this to the State in accordance with the requirements of the law. Further, you did not put this part of your evidence or claim to any of the State’s witnesses but agreed to the correctness of their evidence when you agreed to their statements going into evidence against you. Therefore, your claim of an alibi is a very belated one.

The law on belated claims of an alibi is clear. The Supreme Court decision in John Jaminan v. The State (N0.2), correctly states the relevant principles in these terms:

"…[T]he 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."

I applied these principles in many cases already, as in the case of The State v. Luke Sitban. I do likewise here.

Bearing these principles in mind, I note that, in your case, you had the opportunity to put your claims to the State at the time of your arrest through the record of interview and at the commencement of your trial. You did not do that. Whilst I accept that, you are entitled under the Constitution to remain silent, it was in your interest to raise the alibi at any of these stages of your case but you did not. You chose to remain silent about it until you decided to go into evidence after a failed no case submission. This is very belated, because of which I place little or no weight on it.

Similarly, you also testified for the first time of owning a large plot of vanilla. From these, you made sales at K700.00 per kilogram and made money, in a bid to explain how you came up with the K700.00 police took from you. What I said about your belated claim of alibi also applies to this part of your evidence because the law is the same. I stated the law in these terms in the case of The State v. Luke Sitiban: 

"The law clearly is that, in order for a party’s claim to have credibility, he must in fairness, put his case or claim to the other side’s witnesses by way of cross-examination. In a number of cases such as The State v. Cherobim Kani Peso (Unreported judgment delivered on 13/06/03) N2412, I noted that, that was in effect what is meant by a fair hearing in s. 37 (3) of the Constitution, which I considered was a codification of the rule in Browne v. Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. I noted that the Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J made that clear in the context of a belated claim of alibi.

This principle applies against evidence introduce for the first time in court, without first raising it in a proper notice of an alibi, in the case of an alibi, and in his record of interview, or otherwise, an accused person’s response to a charge. The whole purpose of this is to ensure fairness to both parties prevail and thereby avoid a trial by ambush. The rational behind this rule is for a party conducting the cross-examination, to lay the foundation for the calling of his or her own evidence in rebuttal of the one called by his or her opponent."

In your case, you have not adhered to the import of these principles. By doing that, you took the State and the Court by total surprise. Accordingly, going by the dictates of these principles, I place little or no weight at all on your evidence. Besides, I find that there is no credibility in your evidence and yourself as a witness based on my observations of you in the witness box. What I find to be incredible accounts given by you (part of which I will elaborate later), strengthens this position. I therefore, reject your evidence as incredible and unreliable for the purposes of your defence. If anything your evidence strengthens the case against you in that, it shows that, you left your village soon after the commission of the offence. You gave and or had on your person K700.00 that came from the proceeds of the robbery in the absence of any explanation by you as to when you sold your vanilla beans and when you gave the money to your wife, and why you gave them to her.

Now, given that the issue for trial was one of identification, I need to consider the evidence before me, and the facts they disclose very carefully before arriving at a decision on your guilt or innocence. In The State v. Marety Ame Gaidi, I summarized the relevant principles governing the treatment of identification evidence in this way:

"1.	It has been long recognized that, there are dangers inherent in eye-witness identification evidence;
2.	A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:
(a).	a convincing witness may be mistaken; or
(b).	a number of witnesses could be mistaken;
3.	Provided such a warning is given, no particular form of word need be used;
4.	There should be a specific direction to closely examine the circumstances in which the identification was made;
5.	Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6.	All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad; 
7.	The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8.	There should be an acquittal if the quality of the evidence is bad."

The Supreme Court endorsed this summation of the principles in its judgment in Jimmy Ono v. The State and Masolyau Piakali v. The State. I therefore take it that this is a correct summation of the principles governing the treatment of identification evidence.

Applying these principles to your case, I first warn myself that the evidence purporting to identify you as one of the men involved in the robbery may be mistaken, even in cases where identification is by recognition. In so doing, I note that even an eyewitness may be mistaken in his or her alleged identification. Further, I note that, what matters is the quality of the evidence. If the quality of the identification evidence is good and reliable, the identification evidence will be reliable. It is therefore necessary to closely examine and consider the circumstances in which you were identified.

Although you were not identified by any of the State’s witnesses at the scene of the robbery, there is evidence of those involved in the commission of the offence disclosing you as one of the persons with whom they committed the offence. This is confirmed by the evidence against you, particularly the evidence concerning your conduct immediately after the commission of the offence. You were seen on a drinking spree from Friday to Monday with your accomplishes. Further, you ran away from your village and stayed in your wife’s village for about a month before you were arrested. You appear to have forgotten your vanilla garden despite giving the impression that you spent most of the days in the vanilla garden. Furthermore, you had on you or with your wife K700.00, the source of which is not disclosed in any convincing manner. You neither disputed nor rebutted these evidences against you. Instead, you consented to their admission. They therefore stand unchallenged.

I find the evidence against you and your involvement convincing and accept them as good and credible for the Court to act on. Accordingly, I find that, your identification as one of the persons involved in the commission of the robbery has been established against you on the required standard of prove, namely, prove beyond any reasonable doubt. Hence, I find you guilty as charged and return a verdict of guilty against you on the charge of armed robbery, contrary to s. 346 of the Criminal Code. I order that you be remanded in custody pending your sentence.
_____________________________________________________

Lawyers for the State:			The Public Prosecutor.
Lawyers for the Accused:		The Public Solicitor.