N3194

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 01 OF 2004

THE STATE

-V-

JACOB FRANCIS PARAN

Kokopo: Lenalia, J.
2007: 22, 23, & 6 March

CRIMINAL LAW – Charge of attempted armed robbery – Not guilty plea – Trial – Criminal Code Section 387 (1) (a) & (2) (a) (b).

CRIMINAL LAW – Trial on a charge of attempted robbery – Identification evidence – Issues on trial.

CRIMINAL LAW – Practice and procedure – Validity of identification parade – Manner of identification – Where identification parade should be conducted – Mode of identifying the accused not acceptable.

CRIMINAL LAW – Practice and procedure – Submission of no case to answer – Relevant principles

Cases cited.

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Aige Kola [1979] PNGLR 620
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 497
The State v Lasebose Kuriday (1981) N300
The State v Delga Puri and Tapri Maip [1982] PNGLR 395
The State v Thomas Some (1982) N366M
The State v Roka Pep (No.2) [1983] PNGLR 287
Michael Mini v The State [1987] PNGLR 224
The State v Anis Noki [1993] PNGLR 426
The State v Buka Pepena (1995) (Unreported dated 19.5.95)
The State v Timothy Koi Kola & 4 Others [1996] PNGLR 322
The State v Iakoto Imbuni (1997) N1559
The State v Henry Osare Kales (1998) N2115
The State v Sela Gipie (2000) N2058
The State v Eki Kondi & 4 Others (2004) N2542

Counsel

L. Rangan, for the State
S. Maliaki, for the Accused

6 March, 2007

1. LENALIA, J: The accused pleaded not guilty to one count of attempted armed robbery which occurred on 10 September 2003. This is an offence contrary to s. 387 (1) (a) and (2) (a) (b) of the Criminal Code.

EVIDENCE

2. On 10 September 2003, the State in its evidence says that between 9 am and 12 noon, at Vunamarita village on the North Coast area of this Province, the accused was amongst a group of young men who staged a road block to stop any vehicles that came their way with the intention of robbing passengers of their belongings and even vehicles.

2. While the gang waited, a school truck from Kabaira Girls Vocational Centre also on the North Coast came to where the road block was being placed across the road. The driver of that vehicle Richard Todiat was called as the second witness. His evidence is similar to that of the third witness Rose Palang Ludwick. When the attempted hold-up took place, Rose was a passenger sitting in the cabin with the driver.

3. They drove up to where the road/block was being placed across the road sensing trouble, Richard said, he slowed down and applied his second and third gear. As he was doing this, both witnesses said a person wearing an orange over-all pointed a shot gun at them and demanded the driver to stop. They did not stop and according to the driver he said he successfully drove over and through the logs that were placed on the surface of the road. In case of Rose, as soon as she saw the man pointing the gun at them she bent over and allowed only for her eyes to look through the driver’s side window. 

4. A part from the accused, the two witnesses said they also saw another person standing behind him holding a bush/knife while a third person was inside the tall bush shrub somewhere. When the two witnesses were asked if they could identify the accused, Rose and Richard pointed to the accused and they each said they saw the accused had in his possession a shot gun. 

5. After the driver had driven past the road/block, the man who had the gun fired a shot at their back causing three distinctive dents to the back of the truck. These dents were later identified by the police investigating team at Rabaul Police Station. 

6. The only passenger sitting at the back of the truck was a woman. When she saw what was happening, she laid down on the floor tray to avoid being seen or even shot at. It was lucky, she was not hit by any gun pellets. 

7. Before the trio in the truck was held up, the first witness Elizabeth Pital narrated to the court what she saw prior to the attempted robbery. About 9 am, Elizabeth took a walk from Vunamarita village to the neighbouring village of Ratongor where her brother lives. 

8. As she was walking along, she met a young man whom she described to be of fair skin complexion with a nicely groomed hair cut. The man only wore a short trouser without any shirts on the upper part of his body. She spoke to him and then asked him where he had come from. The man said he came "from down there".

9. Elizabeth noticed that this same young man was carrying a betel-nut trunk as he was walking along side the road. Then after speaking to the man, she quickly walked up toward Ratongor village because she sensed that something terrible would actually occur. From that conclusion, Elizabeth started to walk faster.

10. She walked a short distance from where she saw the person and met her brother on the road. They then walked up past the place where the road block was being staged. She urged her brother to walk away from the road block quickly lest anything should happen to them. When they reached the house at Ratongor village, they heard the noise of a shot gun being fired.

IDENTIFICATION ON THE SCENE.

11. Elizabeth Pital and Richard Todiat were asked in chief and cross-examination if they were shown the person whom they saw on the scene could they be able to identify him. Without the prosecutor asking if they could see anyone around the court room with similar description, they each pointed to the accused on the defendant’s dock saying that, that was the person they saw on the scene on 10 September 2003.

12. The last witness in this case was Andrew Nasala a Constable in the Police Force attached to the Tactical Task Force based in Rabaul at the time the offence occurred. He investigated this case and he interviewed the three witnesses whom I have referred to earlier. 

IDENTIFICATION AT KABAIRA.

13. Though Constable Nasala said in his evidence in cross-examination that, the accused was identified by witnesses during an identification parade at the Livuan Rural Police Post, there was no such identification parade conducted at all. When this witness was cross-examined, he retracted what he had earlier said about where the identification parade was conducted.

14. It is clear from the evidence of witness Rose Palang Ludwick that three days after the offence was committed some policemen and a few villagers came in together with the accused in a vehicle owned by the Livuan Local Level Government. Rose said, the policemen asked her to identify the accused if he was the one whom she saw on the scene some three days ago. Rose said, she then identified the accused. According to Rose, there were no other persons being put together with the accused from whom the accused could be identified. 

LAW.

15. At the end of the prosecution case, Ms. Maliaki made a submission of no case to answer on the basis of the second leg of the principle set down in the case of The State v Paul Kundi Rape [1976] PNGLR 96. The law set in the above case has been adopted both by the National and Supreme Courts. 

16. There are two tests which the court will consider at this stage of this trial as established by the above case. The first of those two tests is, is there some evidence of the essential elements of the charge before the court now which would either prove the elements directly or to enable the court to infer their existence. 

17. As the case law authorities say, this question can only be decided at the end of a trial both for the prosecution and the defence. In other words, it would be wrong for this court to decide now after the prosecution case has been closed if I am satisfied beyond reasonable doubt of the guilt of the accused: The State v Delga Puri and Tapri Maip [1982] PNGLR.395, see also The State v Tom Morris [1981] PNGLR.493.

18. The second question I will ask myself is, although if there was a case to answer, is there sufficient evidence on which this court could lawfully convict the accused? 

19. As my brother, Justice Cannings said in The State v Jenny Kebana Peter (2005) N2813 at page 4 of that judgment: "If the answer to question 2 is no, i.e. there is insufficient evidence, the trial judge has discretion to either not call upon the accused (i.e. enter an acquittal) or order the trial to proceed. If the answer to question 2 is yes: the trial must proceed". The following two questions were asked by His Honour which the court in that case answered in page 4 of that judgment: 

"Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? 

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, i.e. including any evidence adduced by the accused.

If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused? 

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it."

(See also The State v Roka Pep [1983] PNGLR.19, The State v Aige Kola [1979] PNGLR.620, The State v Lasebose Kuriday (1981) N300.

ISSUES ON THE PROSECUTION CASE

20. There are two identifiable issues involved in the prosecution case. The first is on identification made by witnesses Elizabeth Pital, Richard Todiat and Rose Palang Ludwick made on the scene. Elizabeth said she saw a light skin young man. He was only wearing shorts and he did not wear any shirt or singlet on the upper part of his body. The accused’s face is brown in colour and not as described by Rose. No description was given by any of the three witnesses whether the man was tall or short and whether the person they saw was fat or skinny. 

21. Asked in chief if she could be able to identify the person she saw on the scene, Elizabeth pointed to the accused on the dock and said the accused was the person whom she saw on the scene some minutes before the shoot out on the date of the offence.

22. Contrary to what Elizabeth said on the mode of dressing, Todiat and Rose stated in evidence that, the person they saw was wearing an orange overall. Asked in chief and cross-examination if they could identify the person in court, they each pointed to the accused saying they had seen the accused on the scene.

23. On the above contradiction, Mr. Rangan of counsel for the prosecution submitted that the court should infer from all evidence that since Elizabeth saw the accused to the time she met her brother and to the time they heard a gun fired was a fair bit of time for the accused to have fitted himself into a new outfit.

24. He asked the court to infer that there was sufficient time for the accused to have changed his clothing to fit on a new outfit before Todiat and Rose came. Any inferences to be drawn must be reasonable and deduced or drawn from the finding of facts and evidence legally presented on trial.

25. I note here that the inference the court is being asked to take is not an inference of guilt as stated in Paulus Pawa v The State ]1981] PNGLR 498 or as in The State v Tom Morris [1981] PNGLR 493. The prosecution is asking the court to infer that, somehow between the time the first witness saw the accused and the time the gun was fired, the accused quickly changed into a new set of clothing being the orange overall as referred to by Richard Todiat and Rose Palang.

26. This court is unable to draw such inference for two reasons. First, there is evidence that on the scene that morning there were three persons including the accused. Anyone of the other two could have worn the orange overall. Secondly, the other two persons who were seen that morning are not in court. This leaves a lot to be decided in the mind of the court as to the identity of the accused.

27. Since this is a criminal trial, any inferences drawn must not only be rational inferences but they must be the only rational inference to be drawn: Plomp v The Queen (1964) 110 CLR 234 at page 252.

28. The situation would have been different if the accused was a sole person on the scene on the date of this crime. If that was the case then it could be said that the only inference the court could draw would be a rational one in other words that could be the only reasonable inference or conclusion the court could reach.

29. The accused person is charged alone and although there is some evidence to show he could have been an accomplice to this crime, s.7 and 8 of the Criminal Code have not been invoked and pleaded on the indictment something which I supposed the court cannot easily infer from all the evidence before me on this trial.

30. The second aspect of the prosecution evidence was the mode of identification conducted at Kaibaira Girls Vocational Centre. The police investigating officer of this case, Constable Andrew Nasala says in his statement tendered by consent (Ex. "D") that the identification parade was conducted at Livuan Rural Police Post. 

31. But during cross-examination on his oral evidence, he said in answer to questions put to him by the defence counsel that the identification was done at the above Vocational Centre. This witness contradicted himself. The court will accept the version given in court during cross-examination that the identification parade was conducted at Kabaira Vocational Centre.

32. In fact, the evidence shows that there was no identification parade at all. Andrew Nasala said that all that was done was the accused sat together with a number of villagers at the back of a Local Level Government vehicle and witness Rose Palang Ludwick was asked if the accused was the man she had seen three days earlier on the scene of the attempted armed robbery. Rose told the last witness that it was the accused she saw on the scene. 

33. Ms. Maliaki attacked the manner in which the identification was made at Kabaira Vocational Centre saying it was unfairly conducted because there was in fact no identification parade at all. 

34. Counsel submitted the manner under which her client had been identified was unfair in terms of the case of The State v Thomas Some (1982) N366 (M). In the above case the former late Kidu; C. J, said that an identification parade must be fair in the sense that, an accused or a number of them must be placed in a group or in a line-up of persons of or about the same age, built, skin complexion in terms of their description.

35. In Michael Mini v The State [1987] PNGLR 224 the Supreme Court consisting of Kidu; C.J, Kapi; D.C.J (as he then was) and Woods; J made the following sentiments about an accused being identified without any other persons together with him: 

"This whole process of identification was grossly unfair to the appellant. First, the complainant was prompted by the police to make the identification and secondly, the appellant was the only person to be identified. No one has to be a mental giant to conclude that the chances of the appellant being identified were nothing but great." (Emphasis added). 

(See also cases of The State v Sela Gipie (2000) N2058, The State v Henry Osare Kales (2001) N2115, The State v Timothy Koi Kola, Peter Kana Maima, Michael Baz Ganwi & Matthew Kobo Hugo Gera [1996] PNGLR 322 and The State v Eki Kondi, Mike John, Allan Nemo, Koli Sop Kondi & Isaac Sip (2004) N2542). 

36. There is clearly great danger in the manner of identification made by witness Rose Palang at Kabaira Girls Vocational Centre. It was most unfair on the part of the investigating officer to let this happen when he knew that the proper way to conduct an identification parade would be to call a line for some people to stand in so the identifiers should come one by one to make their identification. And the most likely suitable place would be in a police station. 

37. I distinguish the identification evidence in the current trial from the cases of The State v Anis Noki [1993] PNGLR 426, The State v Iakoto Imbuni (1997) N1559 and The State v Buka Pepekon (1995) (Unnumbered Judgment dated 19th May 1995). In The State v Anis Noki (supra) it was said that where village leaders and people of the community have come forward to hand over suspects such become a matter of evidence and which may be admissible evidence as those who have identified an accused are his clansmen.

38. None of those who took the accused in to the Kabaira Vocational Centre came to testify as to where the accused was taken or why he was around on or along the North Coast area of this Province. Coupled with the above is the fact that each of those who said they identified the accused had never seen the accused before except for the brief moment of what I must refer to as a "fleeting glance" on the scene.

39. In the circumstances of the instant trial, the offence occurred at Vunamarita on the North Coast Road of this Province. The accused comes from Ramalmal village as intimated by Mr. Rangan of counsel for the prosecution during the trial that, the accused’s village is quite a distance away from where the offence was committed. He did not put the distance into kilometres. 

40. After all none of those who were with the accused in the LLG vehicle at Kabaira came to testify against the accused and to tell the court how come the accused was on the scene of the attempted robbery. This leads me to the conclusion that the accused might not have been correctly identified. I must up-hold the no case submission. 

41. The accused is therefore acquitted and discharge on this charge of attempted robbery. If he has no other cases against him he can be now discharged forthwith.

_______________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Accused