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State v Kamo [2006] PGNC 36; N2991 (16 February 2006)

N2991

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 633 & 634 OF 1998

THE STATE

V

FRANCIS VAU KAMO

KIMBE: 10-12 AUGUST 2005; 9, 16 FEBRUARY 2006
CANNINGS J

VERDICT

CRIMINAL LAW – indictable offences – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery).

CRIMINAL LAW – evidence – identification evidence – relevant considerations when determining credibility – pre-existing knowledge of identity of accused – identification parade – recent complaint.

CRIMINAL LAW – evidence – alibi evidence – relevant considerations when determining worth of alibi evidence.

There was an armed robbery at Hoskins Airport in 1997. A gang of four men held up two Westpac Bank officers who had just collected a patrol box containing K380,000.00 cash from an Air Niugini flight that had arrived from Port Moresby. The bank officers were accompanied by a police officer, who was stabbed during the course of the hold-up. The gang was armed with a pistol and knife. They stole the cash, a vehicle and a police-issued shotgun. It was alleged that the accused was a member of the gang. He pleaded not guilty and produced an alibi. The case turned on identification and alibi evidence.

Held:

(1) There are inherent dangers in relying on the correctness of identification to support a conviction.

(2) However in this case the identification evidence was strong, as an eyewitness to the robbery gave a clear identification of the accused; another witness provided strong circumstantial identification by placing the accused at the scene of the crime one hour before it happened and an identification parade had also resulted in a positive identification.

(3) The alibi evidence was weak and unreliable.

(4) The elements of the offences were proven beyond reasonable doubt.

(5) Accordingly the accused was convicted of armed robbery, as charged.

Cases cited:
The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Browne v Dunn (1893) The Reports 67
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Donald Poni (2004) N2663
The State v Eki Kondi (No 1) (2004) N2542
The State v John Bosco (2004) N2777
The State v Noutim Mausen (2005) N2870
The State v Okata Talangahin (No 1) (2004) N2581

Abbreviations:
The following abbreviations appear in the judgment:

© – copyright
AJ – Acting Justice
Aug – August
CID – Criminal Investigations Division
CJ – Chief Justice
Const – Constable
CR – criminal case
DCJ – Deputy Chief Justice
Dep – Deputy
Det – Detective
Dr – Doctor
eg – for example
ENB – East New Britain
ENBP – East New Britain Province
Feb – February
Govt – Government
ie – that is; by which is meant
J – Justice
N – National Court judgment
No – number
Oct – October
OIC – officer-in-charge
p – page
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
pp – pages
Prov – Provincial
PSC – Police Station Commander
Pty – Proprietary
ROI – record of interview
SC – Supreme Court judgment
Sgt – Sergeant
Snr – Senior
v – versus
WNB – West New Britain
WNBP – West New Britain Province

Tables:
The following tables appear in the judgment:

TRIAL

This was the trial of an accused charged with armed robbery.

Counsel:
F Popeu for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the verdict for a man who pleaded not guilty to armed robbery of bank officers and a police officer, involving theft of cash, a vehicle and a police-issued shotgun. The trial began in August 2005 but was interrupted due to the non-availability of counsel and the trial judge and did not resume until February 2006.

BACKGROUND

Incident

The incident giving rise to the charge took place at Hoskins Airport near Kimbe, West New Britain, in August 1997. It is alleged that the accused and three other men held up two Westpac Bank officers and a police officer at gunpoint and knifepoint and stole cash, a vehicle and a police-issued shotgun.

Indictment

On 10 August 2005 the accused was brought before the National Court and faced an indictment containing three counts:

Count one:

Francis Vau Kamo of Mai, Hoskins in West New Britain Province stands charged that he on the 20th day of August 1997 at Hoskins Airport in Papua New Guinea stole from one Robinson Zinzowheat Watiu with actual violence K380,000.00 in cash the property of Westpac Bank (PNG) Limited.

And at this time, the said Francis Vau Kamo was armed with a pistol and a small kitchen knife being dangerous and offensive weapons, was in company with other persons and wounded one Paul Irisia.

Count two:

Francis Vau Kamo of Mai, Hoskins in West New Britain Province stands charged that he on the 20th day of August 1997 at Hoskins Airport in Papua New Guinea stole from one Robinson Zinzowheat Watiu with actual violence a Mitsubishi L200 double cabin utility, registration No BAE 573 the property of Westpac Bank (PNG) Limited.

And at this time, the said Francis Vau Kamo was armed with a pistol and a small kitchen knife being dangerous and offensive weapons, was in company with other persons and wounded one Paul Irisia.

Count three:

Francis Vau Kamo of Mai, Hoskins in West New Britain Province stands charged that he on the 20th day of August 1997 at Hoskins Airport in Papua New Guinea stole from one Paul Irisia with actual violence a Mossberg pump action shotgun serial No L437432 and 5 live cartridges the property of the Independent State of Papua New Guinea.

And at this time, the said Francis Vau Kamo was armed with a pistol and a small kitchen knife being dangerous and offensive weapons, was in company with other persons and wounded one Paul Irisia.

The three charges were laid under the following provision of the Criminal Code:

• Section 386, the offence of robbery.
  

Arraignment

The accused pleaded not guilty to all three charges. He was present throughout the trial.

GLOSSARY

The following glossary lists the names of individuals and places referred to in the evidence:

Individuals
Clement Kamo – Defence witness No 2; alibi witness for the defence, who is the brother of the accused
Daniel Jessy – one of the four co-accomplices
Daniel Jessy Savou – the same person as Daniel Jessy
Francis Kamo – the same person as Francis Vau Kamo
Francis Metta – the same person as Francis Vau Kamo
Francis Vau Kamo – Defence witness No 1; the accused
George Tako – Westpac Bank employee and one of the three witnesses called by police for the identification parade to identify the accused
Godfried Maragas – Westpac Kimbe Branch Manager
Joe Kape Metta – the same person as Francis Vau Kamo
Joshua Metta – one of the four co-accomplices from Gaongo village, WNB
Joshua Natta – the same person as Francis Vau Kamo
Koto Kamo – the same person as Francis Vau Kamo
Lawrence Warangi – Doctor that treated Paul Irisia’s wounds received during the robbery
Michael Saun – State witness No 2
Paul Irisia – State witness No 1; Senior Constable; was the escort officer at the airport
Philip Kamani – truck operator that gave lift to the accused and his accomplices
Philip Sege – State witness No 4; Detective Sergeant who conducted the identification parade
Popo Kamo – the same person as Francis Vau Kamo
Robinson Watius – Westpac Bank employee who was also held up at the airport
Theresa Kobo Kamo – mother of the accused
Thomas Ombul – State witness No 3; Detective Sergeant who was the investigating officer
Wick Kaluwin – one of the four co-accomplices

Places
Air Niugini – the national airline of Papua New Guinea
Airlink – a commercial airline operating locally
Buluma – sub-station outside of Kimbe, WNB
East New Britain – a province in the New Guinea Islands region
Gaongo – neighbouring village of Mai, WNB
Gule – a village in WNB
Hoskins – Government station where the airport is located
Hoskins Airport – Main airport for WNBP where the armed robbery took place
Kapore – sub-station outside Kimbe close to Buluma sub-station, WNB
Kimbe – capital of WNB
Kokopo – one of the main towns of ENBP
Lakiemata – correctional institution/gaol/prison, near Kimbe, WNB
Mai – the accused’s village in WNB
Manus – the province in the New Guinea Islands from which co-accomplices Daniel Jessy and Wick Kaluwin come from
Pomio – a district in ENB
Port Moresby – the capital of Paua New Guinea
Rabaul – the capital of ENBP
Rikau – a village in WNB
West New Britain – Province in the New Guinea Islands region

THE STATE’S CASE

Outline

The State tendered ten exhibits by consent and called four witnesses to give oral evidence.

The exhibits

Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS

Oral evidence

Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 2: WITNESSES CALLED BY THE STATE

The first witness for the prosecution was Senior Constable Paul Irisia. In examination-in-chief he stated that he is originally from Siwai, Bougainville. He has been in the Police Force for 36 years and in West New Britain for 28 years.

On 20 August 1997 he escorted Westpac Bank staff from Kimbe to Hoskins to collect money that was sent from Port Moresby. He was there with the two staff about 4.00 pm when the plane landed. One of the bank officers went to check the money, which was in a patrol box. The patrol box was heavy and the bank officer could not carry it himself so he went to help him. He left his police issue shortgun in the vehicle that they had arrived in. They put the patrol box on the back of vehicle.

The driver had got inside the vehicle, getting ready to take off. When he, Paul Irisia, was trying to get into the vehicle four men came from behind and threatened him. One of them then held the knife to his neck and said "hands up". He tried to grab the knife. There was a struggle with one of the others and he was cut on his left hand and on the small finger of his right hand. The three others were at the front. They were about four metres away. They forced their way into the vehicle and drove away with the money in the vehicle. They drove towards Hoskins Police Station.

He called out for help. A Telikom vehicle arrived and assisted him to Hoskins Police Station, then to Kimbe Hospital.

He confirmed that he had opened the door and had put one foot in the vehicle when the knife was pointed at his neck. Both the driver and the other bank officer were already in the vehicle. The criminals attacked the driver to get him out of the vehicle. He could see over the vehicle and got a good view of what was happening. He was standing on the left-hand side of the vehicle. The person with the pistol was in front of the vehicle, slightly to the side. The whole incident did not take very long, about five minutes.

The knife that was used was about 30 cm in length. He identified a pistol which was tendered in evidence (exhibit I) as the pistol that was used. Two of the gang members were from Manus. He identified them and they are now in custody.

When the incident happened, it was a sunny, fine day.

One of them, the person who held the knife, was wearing a cowboy hat. The other three had nothing on their heads. Their faces were clear and uncovered.

The accused was standing in front of the vehicle with the other members of the gang. He did not know the accused before and he still does not know his name clearly but knows his face. He remembers identifying him at an identification parade in Kimbe in 1998.

In cross-examination Paul Irisia said that the identification parade was conducted some months after the robbery. He saw some of the suspects again when he went to the jail and saw all of them there. He had not seen them anywhere else. He does not recall the type of clothing those in the identification parade were wearing. He does not know where the suspects came from immediately before they were put into the parade. He does not recall the accused looking scrappy or dirty.

In re-examination Paul Irisia said that before the identification parade was conducted he was not allowed to see the accused. At the airport he was cut on the arm. Then the person who did that, moved away from him. Then the pistol was pointed at him. That was the time that he identified the accused.

That ended Paul Irisia’s evidence.

The second witness for the prosecution was Michael Saun. In examination-in-chief he stated that he lives at Gaongo village, which is near Mai village. In 1997 he was an employee of Airlink, working at Hoskins Airport.

On the day of the robbery he was at work at the airport. An hour before the robbery he went to urinate under a coconut tree near the office as the toilet at the airport was blocked. After he finished he was going back to the office. He saw four men standing around the airport area. He did not talk to them. He just went back to the terminal and continued working. He was in the office when the robbery occurred. When he came outside the security officers told him that there had been an armed hold-up in the terminal car park. He saw the policeman who had been injured. He heard people talking about the incident and describing the people involved. At that time he remembered the four men he had seen earlier in the afternoon. They suited the description that bystanders were giving of those who committed the robbery. He went back to the office.

When he was coming back from urinating he got a clear view of the four men. He knew all of them. They were: Daniel Jessy, Wick Kaluwin, Joshua Natta and Francis Vau Kamo. The first two are from Manus. They live at Gaongo. Joshua Natta is a local from Gaongo. Francis Vau Kamo is from Mai. He knows all of them as he is from Gaongo. Three of them were from his village. The other one, the accused, is from Mai village, which is close to Gaongo.

When he saw them they were a little bit far away. They were sitting in the car park. It was a sunny day. There was nothing covering their faces. He got a clear look at them.

He identified Francis Vau Kamo as the person in the dock.

He came outside when he heard that there had been a robbery. He saw none of the four of them still there.

In cross-examination Michael Saun confirmed that he knew three of the men he had seen at the airport. They were from his village. He did not talk to them often but when they did meet he used to greet them. At the airport he did not greet them as he was busy with his work and he only came out of the office to relieve himself.

When he saw the four of them they were about 20 metres away. It was a busy day at the airport. He was hurrying to the coconut tree to urinate and then he went back to work. He only got a glimpse of them. He did not take a good look at them.

The Air Niugini plane that arrived was an F28. There were not too many passengers around.

Mr Oiveka asked him whether it was possible that the four men he had seen earlier in the day had left by the time the robbery took place. He replied that he was in the office when the robbery occurred. He only saw them before the plane landed.

He went to the toilet about one and half or two hours before the robbery took place. For all of that time he was in the office. He only came out when he heard about the robbery.

He was asked again whether the four men he had seen earlier might have left by the time the robbery took place. He replied that when he came out and saw the policeman injured he heard the bystanders describing the people involved in the robbery. That is when he recalled seeing the four men earlier in the afternoon. He heard the Air Niugini security officers talking about the robbery. He heard people describe the type of clothes that the four men were wearing. The description matched his recollection of what the four men were wearing. That is when he suspected that those four had committed the robbery.

He conceded that in his examination-in-chief he had not mentioned anything about the clothes the men were wearing. He denied that he was making up stories about this.

Daniel Jessy was described as wearing a white long-sleeved shirt and black cap. When he heard that description he remembered Daniel dressing in that kind of clothing.

In re-examination Michael Saun stated that on his way back to the office from urinating under the coconut tree he was walking. He was familiar with all four men. He does not believe that he made a mistake in identifying them.

Answering questions from the bench Michael Saun said that he has some relatives in Mai village. He goes there from time to time. That is how he came to know the accused.

Mr Oiveka was then granted leave to re-open the cross-examination of Michael Saun. He stated that in the period leading up to August 1997 he had not visited his relatives in Mai. In the period after August 1997 he has not visited his relatives at Mai. He does not know whether the accused was at home on 20 August 1997. He does not know whether the accused has been at home since August 1997.

That ended Michael Saun’s evidence.

The prosecution’s third witness was Detective Senior Sergeant Philip Sege. In examination-in-chief he stated that he had been a member of the Royal Papua New Guinea Constabulary for 28 years. He has been in the CID for 27 years and based in Kimbe for 11 years. He is currently the officer-in-charge of the CID for West New Britain Province.

In March 1998 he was asked by the investigating officer for the Hoskins Airport robbery, Thomas Ombul, to conduct an identification parade in relation to the accused. The accused was kept in the CID office and was later brought out to join the others. The accused and nine other young men were asked to stand in front of the CID office while witnesses were kept in the main traffic office. The identification parade was held at about 1.00 pm on 4 March 1998. Three witnesses were at the parade. The first witness was Senior Constable Paul Irisia. The second witness was George Tako and the third witness was Robinson Watiu. They each made a positive identification of the accused.

In cross-examination Det Snr Sgt Sege said that the identification parade was held in front of the CID office and the witnesses were in the traffic office. Pressed by Mr Oiveka as to whether all the witnesses were in the traffic office he replied that it was a long time ago.

There was nothing unusual about what each member of the identification parade was wearing. They were wearing casual clothes. He does not recall what the accused was wearing. Young men from different parts of the country were in the parade. A number of them were from West New Britain.

The accused had been in the Kimbe police lock-up for a number of days as he had been brought to Kimbe from Rabaul.

The accused was known by a number of names including Francis Vau Kamo and Joshua Natta.

That ended Det Snr Sgt Sege’s evidence. There was no re-examination.

The fourth witness for the prosecution was Detective Sergeant Thomas Ombul.

In examination-in-chief he stated that he has been in the Police Force for 28 years, mostly in West New Britain Province. He has spent 12 years in the Criminal Investigation Division. He is the investigating officer for the Hoskins Airport robbery of 20 August 1997. The details of the accused, Francis Vau Kamo, were released by his relatives. He was detained by Kokopo police in January 1998 and handed over to Kimbe police. On 25 August 1998 two firearms were confiscated from Daniel Jessy. These were a gas pistol and a police pump-action shotgun serial No L437432.

In cross-examination Detective Sergent Ombul said that the accused had been using different names in Kokopo in an attempt to conceal his identity. No firearms or any other exhibits had been confiscated from the accused. He is 100% sure that the accused is one of the four men who committed the robbery. Immediately before the accused was inserted into the identification parade he was being held in the CID office. He was not particularly dirty looking that day. He was dressed in a similar way to the others on parade. They came from different parts of the country.

That ended Det Sgt Thomas Ombul’s evidence. There was no re-examination.

The State’s case was then closed.

THE DEFENCE CASE

Outline

The defence called two witnesses, including the accused, to give oral evidence. No exhibits were adduced.

Oral evidence

Table 3 lists and describes the defence witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 3: WITNESSES CALLED BY THE DEFENCE

The first defence witness was the accused, Francis Vau Kamo. In examination-in-chief he stated that he comes from Mai village near Hoskins. On the day of the robbery he was at his block cutting grass. He was there all day until the late afternoon with is brothers, Clement and Julius. When they came back to the village they heard about the robbery.

Mr Oiveka asked him what he had to say in response to Michael Saun’s evidence that he was one of the gang that committed the armed robbery. He replied that it was not true.

From August he was at Pomio. That is where he was arrested by the police, in January 1998, with another person from his village. Later he was taken to Rabaul. They had gone to Pomio to see their sisters.

He was brought from Rabaul to Kimbe by ship. There was an identification parade at Kimbe Police Station. The police and the State witnesses were outside while he and other boys were inside the office. The police and the witnesses must have discussed it amongst themselves and worked out who the witnesses had to mark.

He was quite shocked when the police charged him for something he knew nothing about and took him to Lakiemata.

In cross-examination Mr Popeu asked the accused if his village, Mai, was close to Gaongo village. He replied yes and that some people from Gaongo know him and he knows some people from Gaongo. However, the young men from each village do not go to the other village too much. Only those with relatives in the other village visit each other. The two villages do not combine in sporting activities. The villages are about 2.5 kilometres apart. Mai is closer to Buluma than to Gaongo. There is no other village between Mai and Gaongo so Gaongo is a neighbouring village to Mai. When he leaves Mai he usually goes to Kapore or to town, not to Gaongo. He only stops and talks to people who he knows.

In 1997 he went to Pomio only once, with one of his brothers. It was after the date of the robbery that he went.

Asked about his name, which was referred to in his record of interview as ‘Joshua Metta Francis Kamo’, he said his name is "Francis Kamo". He does not know anything about "Joshua Metta". He thinks that the name that appears in the record of interview was a made-up name.

He does not believe that the identification parade was conducted properly. The police and the witnesses discussed amongst themselves who should be identified.

Michael Saun, whose evidence was that he saw the accused at the airport on the day of the robbery, was lying. However, he has no grudges against Michael Saun and Michael Saun has none against him.

The accused was asked the same question in relation to the other witnesses: Philip Sege, Paul Irisia and Thomas Ombul. The accused answered the same in relation to each one. He has no grudges against any of them. None has a grudge against him.

He denied that they had identified him because he took part in the robbery.

In re-examination the accused stated that the only people in Gaongo who know him are his relatives. Michael Saun is not a relative. It is impossible to know everyone in Gaongo. Likewise it would be impossible for anyone in Gaongo to know everyone in Mai.

That ended the accused’s evidence.

The second defence witness was Clement Kamo. He is the accused’s brother. He also lives in Mai. In examination-in-chief he recalled that on the day of the Hoskins Airport robbery in 1997 he was at Francis’s block cutting trees and grass.

Francis’s block is next to his and another brother’s, near Mai. Also helping them on that day was their brother Julius and another person, his namesake Clement. They started working on the block at 7.00 and continued there all day until the late afternoon. Francis was with him all day.

He was shocked when he heard that Francis was a suspect in the airport robbery. He does not know anything about Michael Saun’s story.

In cross-examination Clement Kamo said he is a married man. He has a one-acre block. Francis’s block is two acres. Julius also has a block. His namesake Clement is his uncle. They often help each other on their blocks.

He stayed all day at the block, as did Francis.

He knows Michael Saun but does not know if Michael Saun knows him. Michael has some relatives in Mai and comes to visit them sometimes.

He does not live in the same house as Francis. But both he and Francis live in Mai village.

He has no grudges against Michael Saun and Michael has none against him.

The other two men who were with him and Francis that day – their brother, Julius, and their uncle, Clement – also live in the village. He does not know if they knew Francis’s case was in court on the day that he, Clement Kamo, was giving evidence. Their places are about 100 metres from his place.

In re-examination Mr Oiveka asked Clement how he knew that the trial was on today and that he was required to give evidence. He replied that one of the warders told him about it. He would not know if Julius and his Uncle Clement got the same message.

Asked whether he would like to see Francis go to gaol he said that that would be up to the court to decide. However, the story he has told is true, he said.

That ended Clement Kamo’s evidence and marked the end of the evidence for the defence.

The defence case was closed. The court then called for submissions.

SUBMISSIONS FOR THE ACCUSED

Mr Oiveka submitted that it was an undisputed fact that there was an armed robbery at Hoskins Airport at about 4.00 pm on 20 August 1997. K380,000.00 cash belonging to Westpac was stolen together with a Westpac vehicle and a police-issued firearm. The only issues are identification and the alibi. None of the documentary evidence implicates the accused. His record of interview is unsigned. Everything turns on the oral evidence of the four State witnesses and the two defence witnesses.

Snr Const Paul Irisia’s evidence is unreliable. The incident happened quickly. He was threatened, injured, and feared for his life. He only had the chance to get a fleeting glance of the criminals and he was stressed at the time. He was more concerned about his own safety. In such circumstances it is easy for a person to make an honest mistake about the identity of an assailant.

Michael Saun’s evidence also falls into the ‘fleeting glance’ category. He did not talk to any of the men that he saw. Contrary to the impression he gave in his evidence his village, Gaongo, and the accused’s village, Mai, are not that close. He was in a hurry to go to the toilet. Furthermore, he was inside the terminal when the robbery took place. He was relying on what other people told him to reach the conclusion that the four people he identified, including the accused, were involved in the robbery.

The identification parade was not a proper or useful way of gathering evidence. It was conducted more than six months after the robbery. Det Snr Sgt Sege could not clearly remember how the parade was conducted. The accused gave evidence about the irregular way in which the parade took place. The State witnesses gave inconsistent evidence about how the parade was conducted.

There is no other tangible evidence to connect the accused to the crime.

The accused has provided an alibi that must be weighed against the prosecution’s evidence. The alibi evidence was strong, Mr Oiveka submitted.

SUBMISSIONS FOR THE STATE

The identification evidence was strong, Mr Popeu submitted. Paul Irisia made his first identification when the robbery occurred. He was an eyewitness. The robbery took place between 4.00 and 4.30 pm. It was a clear day. There was plenty of light.

Michael Saun’s identification was earlier in the day. It was consistent with Paul Irisia’s evidence. Michael had sufficient time to make a proper identification. He identified four people by name, as he knew them all. Three of those that he mentioned are now serving time in prison for their role in this robbery. This fact emerged from the evidence of Sgt Ombul. Michael has relatives in Mai village and that fact is also supported by Clement Kamo’s evidence.

Then there was the positive identification made by Paul Irisia and two other people at the identification parade held in March 1998. So that was the third instance of identification.

It is clear that there was no irregularity in the identification parade. The evidence of Det Snr Sgt Sege and Sgt Ombul show that proper, normal procedures were used.

None of the State witnesses was shown to have any motive for lying. It was not even suggested that there was a motive to lie.

As to the alibi evidence, Mr Popeu submitted that though it was generally consistent Clement had a clear motive to lie as he would not want to see his brother go to gaol.

REPLY BY DEFENCE COUNSEL

Mr Oiveka maintained that the identification parade procedure was unfair. Paul Irisia had been given the opportunity to look at the suspects. More than six months had passed and Paul Irisia conceded that he did not know the accused. He was identifying a stranger.

As to Michael Saun the evidence was that he was in a hurry. That is why he did not talk to the men who he glimpsed at. The court must be alert to the danger of convicting based on a convincing but mistaken witness.

The alibi evidence of both the accused and his brother was unshaken by cross-examination.

THE LAW: ELEMENTS OF THE OFFENCES

To sustain a conviction the State has the onus of proving beyond reasonable doubt the existence of all the elements of one or more of the three charges. Each is an armed robbery charge relating to:

• the K380,000.00 cash;
  
• the motor vehicle;
  
• the police firearm;
  

respectively.

Section 386 (the offence of armed robbery) of the Criminal Code states:

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

To obtain a conviction for one or more of the three charges the prosecution must prove the following matters beyond reasonable doubt:

• the accused stole something;
  
• immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;
  
• in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen.
  

If those three elements are proven and none of the matters set out in Section 386(2) are proven a conviction will be entered under Section 386(1) and the maximum penalty will be imprisonment for 14 years. If the three elements are not all proven the accused must be acquitted.

If, in addition to those three elements, one or more of the following is proven a conviction will be entered under Section 386(2) and the maximum penalty will be life imprisonment:

• the accused was armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or
  
• the accused was in company with one or more other persons (Section 386(2)(b)); or
  
• at, immediately before or immediately after, the time of the robbery, the accused wounded or used any other personal violence to any person (Section 386(2)(c)).
  

In other words, though the accused has been charged under both Sections 386(1) and 386(2), the prosecution does not have to prove all the elements of both Sections 386(1) and 386(2). Proof of all the elements of Section 386(1) will sustain a conviction. Then if one of Sections 386(2)(a), (b) or (c) is proven, a conviction can be entered under the relevant provision and the maximum penalty will increase from 14 years to life imprisonment. The elements of Sections 386(2)(a), (b) and (c) are circumstances of aggravation as defined by Section 1(1) of the Criminal Code. Section 538 (offences involving circumstances of aggravation) leads to the above interpretation of Section 386.

Section 538 states:

Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—

(a) established by the evidence; and

(b) constituted by any act or omission that is an element of the offence charged,

with or without any of the circumstances of aggravation charged in the indictment.

Section 1(1) defines "circumstances of aggravation" to include:

any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance...

ASSESSMENT OF EVIDENCE

The following approach will be taken:

1. I will comment on the submissions of both counsel, indicating in general terms whether their approach to assessment of the evidence and identification of the key issues is accepted.
   
2. The undisputed facts will be laid out.
   
3. I will assess the credibility of the different pieces of evidence that have been adduced: both the oral testimony of the witnesses and the documentary evidence.
   
4. The law on identification evidence will be set out.
   
5. The law on alibi evidence will be set out.
   
6. I will examine the armed robbery and determine whether the accused was directly involved.
   
7. I will conclude by addressing each of the three charges. I will say whether the prosecution has proven, in relation to each count, that all elements of the offence are established beyond reasonable doubt.
   

COMMENTS ON SUBMISSIONS

The defence counsel concedes that the Hoskins Airport robbery took place on 20 August 1997.

Both counsel agree, and I accept, that the only substantive issue is therefore identification. The court must ask: was the accused directly involved? The prosecution must establish beyond reasonable doubt that the answer is yes. In determining whether it is satisfied to the required standard that the accused was involved the court must take into account a number of principles that guide the court, as a tribunal of fact, on how to assess identification evidence.

The accused says he has an alibi so the principles regarding alibi evidence must also be considered.

UNDISPUTED FACTS

The armed robbery happened between 4.00 and 4.30 pm on Wednesday 20 August 1997 at Hoskins Airport. A gang of four men held up two Westpac Bank officers who had just collected a patrol box containing K380,000.00 cash from an Air Niugini flight that had arrived from Port Moresby. The bank officers were accompanied by a police officer, who was stabbed during the course of the hold-up. The gang was armed with a pistol and a knife. They stole the cash, a vehicle and a police-issued shotgun.

Three men were convicted and are serving prison sentences at Lakiemata Gaol, near Kimbe, for their role in the robbery. The question is whether the accused was the fourth member of the gang.

CREDIBILITY OF EVIDENCE

Documentary evidence

There were ten exhibits. One of them (exhibit H) is the accused’s record of interview. Though it was admitted into evidence by consent the accused takes issue with it. It is unsigned. I have attached no weight to it.

The only other contentious exhibit is Det Snr Sgt Sege’s statement (exhibit J), which annexes an official record of the identification parade. Though Mr Oiveka consistently challenged the fairness of the procedure used he did not claim that the record of the identification parade was false or fabricated. I regard exhibit J as a credible document.

Oral evidence

State witness No 1 was Paul Irisia. I thought he was a credible witness. His demeanour was not of someone lying.

State witness No 2 was Michael Saun. I thought he was an impressive witness. He gave his evidence clearly and concisely and did not seem interested in embellishing his evidence unnecessarily. He gave the impression of someone who was just saying what he saw and that is all.

State witness No 3 was Det Snr Sgt Philp Sege. I thought he was a credible witness. His demeanour was not of someone deliberately lying.

State witness No 4 was Sgt Thomas Ombul. I thought he was a credible witness. His demeanour was not of someone deliberately lying.

Defence witness No 1 was the accused, Francis Vau Kamo. He gave the impression of being an intelligent person bent on giving answers to questions that he thought should be given. His demeanour did not greatly impress me.

Defence witness No 2 was Clement Kamo. His demeanour was not of someone who was an out-and-out liar. However, his demeanour suggested that he was giving the sort of evidence that he thought was necessary to get his brother out of trouble.

IDENTIFICATION EVIDENCE

In assessing the identification evidence I will apply the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J; Biwa Geta v The State [1988-89] PNGLR 153, Kidu CJ, Bredmeyer J, Los J; and Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J. I recently summarised those principles in The State v Noutim Mausen (2005) N2870. Thus:

• I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly.
  
• It is particularly dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. However, provided the evidence is carefully examined the evidence of one witness can suffice.
  
• It is not necessary to have an identification parade.
  
• If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.
  
• There is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.
  
• If the accused has not given evidence the court must not take that into account when considering the quality of the identification evidence, as no inference of guilt ought to be drawn from a failure to testify.
  
• In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?)
  
• If there are discrepancies in the identification evidence the court should consider them and asses whether they are explicable in terms other than dishonesty or unreliability.
  

ALIBI EVIDENCE

The leading case on the principles to apply in determining the value and weight to be given to alibi evidence is John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J. Kandakasi J has also carefully set out and applied the relevant principles in a series of recent National Court decisions involving alibi evidence, eg The State v Okata Talangahin (No 1) (2004) N2581; The State v Eki Kondi (No 1) (2004) N2542; and The State v Donald Poni (2004) N2663. In a recent National Court case in Kimbe, Lay J dealt with the specific issue of the limited circumstances in which an inference adverse to the accused could be drawn by the accused’s failure to call a witness to support an alibi (The State v John Bosco (2004) N2777).

I have considered all those cases and summarise the main principles as follows:

• If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.
  
• However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
  
• How strong or convincing the alibi evidence must be, depends on the strength of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
  
• Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.
  
• An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support and not mere reflection.
  
• An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue.
  
• If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.
  
• An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence.
  
• Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi.
  
• As a matter of practice, defence counsel should put questions about the alibi to the prosecution witnesses, to comply with the rule in Browne v Dunn (1893) The Reports 67.
  
• A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in District Court committal proceedings.
  
• Guilt should not be inferred from the accused not mentioning the alibi on an earlier occasion, as the accused has the right to remain silent at all times. However, as a matter of fact the lateness of an alibi reduces its weight.
  
• The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.
  
• The court should assess the degree of logic and commonsense in the evidence of the alibi witnesses (the terminology used by Kandakasi J in Talangahin (No 1), Kondi (No 1) and Poni).
  
• The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.
  

THE HOSKINS AIRPORT ARMED ROBBERY: WAS THE ACCUSED DIRECTLY INVOLVED?

Approach

First I will consider the identification evidence and determine whether it looks strong enough to conclude that the accused was involved. Secondly I will consider the alibi evidence. If the identification evidence is strong the alibi evidence will need to be strong to counter the weight of the identification evidence. However, if the identification evidence is not strong the alibi evidence will not need to be considered in detail. Thirdly I will consider both the identification evidence and alibi evidence in the context of all other aspects of the evidence.

Identification evidence

As Mr Popeu pointed out that the accused was identified as being involved in three ways:

• Paul Irisia’s eyewitness account;
  
• Michael Saun’s circumstantial evidence;
  
• the identification parade.
  

As for Paul Irisia’s eyewitness account Mr Oiveka makes valid points regarding the circumstances prevailing. Paul Irisia was stressed and justifiably feared for his life. On the other hand as Mr Popeu stresses the light conditions were good. None of the gang had their faces covered. Paul Irisia had a good chance to make a clear identification. He was emphatic that it was the accused. It could be argued that Snr Constable Irisia’s lack of diligence had contributed to the circumstances which allowed the robbery to happen – that is he left his firearm in the vehicle and went to assist the Westpac officers carry the patrol box. However I find that he actually struggled with the assailants and in the process was stabbed. This shows that he was acting with considerable presence of mind and though he justifiably feared for his life, his mental condition did not prevent him being able to make a clear and positive identification of who was in the gang. I conclude that the identification evidence is strong. Paul Irisia was a credible witness. I warn myself, again, of the risk that he might be a credible, honest and convincing – but mistaken – witness. However, in all the circumstances that risk is very small in this case.

Paul Irisia’s evidence is corroborated by Michael Saun’s evidence. Michael Saun was an impressive witness. I accept that he knew the four men he saw. He named each of them. I did not find it at all unusual that he knew the accused. He was identifying three men from his own village and one – the accused – who he knew lived in the neighbouring village, Mai. Even though Michael Saun was in a hurry to go to the toilet, he was not looking or glimpsing at strangers. He just noticed that there were four men he knew present at the airport. He did not see the robbery take place. He was in the terminal. When he came out he spoke to bystanders. They gave him a description of the four men that matched the men he had seen in the car park earlier in the day. The evidence clearly put the accused at the scene of the crime about an hour before the crime was committed.

The identification parade resulted in another positive identification of the accused. I was not convinced by Mr Oiveka’s submission that the parade was conducted unfairly. The accused’s evidence about the State witnesses and the police holding discussions beforehand and conspiring to identify him was vague and unconvincing. Paul Irisia said that he made the identification. There is documentary evidence of that in the official record of the parade annexed to Det Snr Sgt Philip Sege’s statement. There is evidence that two other eyewitnesses to the robbery – the two Westpac officers, Robinson Watiu and George Tako – also identified the accused.

All this identification evidence is strong and consistent.

Alibi evidence

Faced with such strong identification evidence the alibi evidence needed to be fairly convincing, not to counter-balance the identification evidence but to at least create some doubt as to the accuracy of the identification. The burden of proof never shifted from the prosecution.

I uphold Mr Popeu’s submission that the alibi evidence was weak, as neither the accused nor his brother Clement was a convincing witness. Their evidence was vague, lacking in detail and failed to make a good impression.

I therefore reject the accused’s alibi. There is no credible evidence to support it.

All evidence in context

When the discredited alibi evidence is put in the context of the prosecution’s strong identification evidence, the alibi has no substance at all. The prosecution has proved its case.

That conclusion is reinforced by two other aspects of this case. First, Clement Kamo said that there were two other people with him and the accused in the bush on the day of the robbery: their brother Julius and his uncle Clement. Neither gave evidence. They live at Mai, which is not far from Kimbe. They live close to Clement. So why didn’t they give evidence? Presumably because they were not prepared to give evidence. The other curious part of this case is that three members of the gang that committed the robbery are serving time in prison. They presumably know who the fourth person was. If it were not the accused it would be reasonable to expect that they would come forward and say so. Their absence from the trial suggests that they know that the accused was the fourth person.

The two matters I have mentioned are intriguing aspects of this case. I have not relied upon them to reach the conclusion that the accused was involved in the robbery. But having reached that conclusion, they reinforce it.

DETERMINATION OF COUNTS 1, 2 AND 3: ARMED ROBBERY

To reiterate, the basic charge has three elements:

• the accused stole something (the K380,000.00 cash, the Mitsubishi L200, the pump-action shotgun, for counts 1, 2 and 3 respectively);
  
• immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;
  
• in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen.
  

The circumstances of aggravation, at least one of which must be proven are:

1. the accused was armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or
   
2. the accused was in company with one or more other persons (Section 386(2)(b));
   
3. the accused wounded someone (Section 386(2)(c)).
   

By virtue of Section 7(1)(c) of the Criminal Code the court only has to be satisfied that the offence was committed and that the accused aided other persons in committing it. I am satisfied beyond reasonable doubt that three armed robbery offences were committed (involving the stealing of three different things) and that the accused aided three other persons in committing those offences. I am furthermore satisfied that for each offence all circumstances of aggravation under Section 386(2) have been proven beyond reasonable doubt.

Therefore the accused is guilty of counts 1, 2 and 3, as charged.

VERDICT

I find that the accused, Francis Vau Kamo, is:

1. guilty of count 1, armed robbery, and convict him accordingly;
   
2. guilty of count 2, armed robbery, and convict him accordingly;
   
3. guilty of count 3, armed robbery, and convict him accordingly.
   

Verdict accordingly.
______________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the accused : Public Solicitor