N6928
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1115 of 2016
CR 1116 of 2016
CR 1117 of 2016

BETWEEN:
THE STATE

AND:
ANASI APAK
JUNIOR ROBERT BADUI
 AND KIMUGA KONAFE.

Waigani: Liosi, AJ
2017:  10, 14 & 17 August

CRIMINAL LAW –  Accused charged with 3 Counts of Armed Robbery – No case to answer submission made at close of State case – Circumstantial evidence–Issue one of Identification– Identification of one of the accused done by pointing at him in the dock – Other identification by S.96 Statement – State also attempting to connect the accused by doctrine of recent possession of gun by one of the accused – Principles of circumstantial evidence discussed – The need to be mindful of inherent dangers in identification discussed. 

Held: 

1.	The evidence of the State’s key witness Simi Ango was found to be very unreliable and couldn’t be believed.

2.	Although there was some evidence it was so unreliable the accused should not be called to answer to the charges.

3.	The doctrine of recent possession will not stand as there was no nexus or connectivity between the armed robbery and the accused.

4.	Accused acquitted on all 3 counts of armed robbery.

Cases cited:

John Beng v The State (1977) PNGLR 115.
Paulus Pawa v The State (1981) PNGLR 498.
State v Kobale Rau N1509.  
SC Review No.55 of 2013 – Simbu Provincial Government v. Thomas Si ta  
The State v John Wanjil (1997) N1516

Counsel:

Ms S Dusava & Ms C Langtry, for the State
Mr E Sasingan & Mr J Kolowe, for the Defence

17th August, 2017

1.      LIOSI, AJ:  BACKGROUND:  The three accused stand charged on three counts of armed robbery and were arraigned on the following charges:-

Count 1:

i.	Junior Badui of Dagua, Wewak, East Sepik Province, Anasi Apak of Daganawa, Lufa, Eastern Highlands Province and Kimuga Konafe of Ataiya, Kainantu, Eastern Highlands Province stand charged that they on the 24th day of August 2015 at East Boroko, National Capital District in Papua New Guinea, stole from Erwin Sunga with actual violence cash monies in the sum of K213, 000.00 and a firearm namely factory made pistol, the property of Erwin Sunga.

ii.	And at that time the said Junior Robert Badui, Anasi Apak and Kimuga Konafe were armed with a dangerous and offensive weapon, namely factory made pistols and was in company of each other and several other persons.

Count 2:

iii.	That the said Junior Robert Badui, Anasi Apak and Kimuga Konafe stand charged that they on the 24th day of August 2015 at East Boroko, National Capital District in Papua New Guinea stole from Emi Kalai with actual violence cash monies in the sum of two hundred and seventy Kina (K270.00) and a mobile phone, the property of Emi Kalai. And at that time the said Junior Robert Badui, Anasi Apak and Kimuga Konafe were armed with a dangerous and offensive weapon, namely factory made pistols and were in company of each other and several other persons.

Count 3:

iv.	That the said Junior Robert Badui, Anasi Apak and Kimuga Konafe stand charged that they on the 24th day of August 2015 at East Boroko, National Capital District in Papua New Guinea stole from Lyn Kalai with actual violence cash monies in the sum of One Hundred and Fifty Kina (K150.00) and a mobile phone, the property of Lyn Kalai.And at that time the said Junior Robert Badui, Anasi Apak and Kimuga Konafe were armed with a dangerous and offensive weapon, namely factory made pistols and were in company of each other and several other persons.
They were arraigned on the following facts.

2.     On 24th day of August 2015 at around 8.00 am. The complainant Erwin Sunga was at his residential area at the Lakatoi Place, East Boroko. He was with his wife, a female Philipino employee (Gwen Gonzales) and another, a male PNG employee Paulsen Mairi in the house. Shortly after Mr Sunga drove out to attend to some errands.

3.      At around 8:30 am to 9:00 am, Emi Kalai and Lyn Kalai arrived at the premises. They were met by Paulsen Mairi, who handed the gate keys to Lyn Kalai and he went into the boy house to sleep.  Emi Kalai began doing laundry whilst Lyn Kalai sat on the side with her child.

4.      It is alleged that at that point, about 5 to 6 men climbed over the fence and entered Mr Sunga’s property.  Three (3) of the men ran towards Lyn Kalai and pointed 2 factory made pistols at her, telling her to keep quiet.  The other, armed with a weapon went to Emi Kalai, pointed the gun at her and ordered them to go into the boy house where Paulsen Mairi was sleeping. They locked them inside a room in the boy house. One of the men stood guard outside the boy house whilst the rest entered the main house.

5.      Inside the main house, they held up the complainant’s wife Gwen Gonzales at gun point. They then went into the complainant’s bedroom where they stole cash monies in the sum of K213, 000.00, mobile phones and a factory made gun, a 9MM, bearing the serial number AB65418. It is alleged that they also stole personal items such as mobile phones and cash monies in the sum of about K420.00 belonging to the complainant’s employees’ family.

6.      The matter was reported to Police and the three accused were subsequently arrested and charged.

7.      After arraignment the accused denied the charges and a trial ensued on the basis that the accused were not properly identified as the perpetrators. Identification therefore became the primary issue.

8.      The issue is therefore that of identification.

9.      The State by consent tendered into evidence statements of all the witnesses in Court.  Constable Nathan Agirimo, Constable Steven Nibu and Simi Ango were further called and gave oral evidence and were cross-examined. 

Defence Submissions 

10.      Nathan Agirimo’s evidence is that he is a police constable. He does not identify the three accused and in particular Junior Robert Badui. Steven Nibu’s evidence is that he is also a Police Constable who with his colleagues upon receiving information from a John Rams went to 14 Mile and apprehended Junior Robert Badui. They then came back to Kipo settlement, East Boroko and arrested the other two accused. He also confirmed that there was no identification parade done.

11.     The evidence of Simi Ango tries to identify the accused Junior Robert Badui. In his evidence he talks about JR.  He never mentioned Junior Robert Badui. He also mentions John Rams.  He says JR is also known as John Rams by everybody. Further he says JR is from Jiwaka and John Rams is from Chimbu. As per the indictment Junior Robert Badui is from Dagua, East Sepik.  Consequently, the identification of who gave the gun to Simi Ango is in conflict.  The first State witness Nathan Agirimo never identified Junior Robert Badui in the courtroom. Defence submits Simi Ango’s evidence clearly points to two different persons who supplied the gun to him. 

State Submissions 

12.      Miss Malo for the State concedes, there was no identification parade. It is also not a compulsory process that every Police Officer conduct an identification parade rather it is a call made depending on circumstance of a case. The State case is a circumstantial one. It has tendered several documents including the stolen firearm and has called three witnesses at the end of which the defence now makes this application. The case of Paul Kundi Rape discusses the No Case Issue. Miss Malo submits that at this stage the issue is on the evidence as it stands whether the three accused could be lawfully convicted. It is a question of Law and not fact.  The Court is to consider whether the evidence is so insufficient that the three accused should not be called upon to answer.  The defendant relies on the two limbs (1) whether on the evidence as it stands the three accused can be lawfully convicted and (2) whether the evidence is so insufficient that the accused ought not to be called upon to answer.

13.    The State also relies on the case of Pawa v The State where the Supreme Court discussed the issue of circumstantial evidence. Where a State case rests entirely on circumstantial evidence, there should be an acquittal unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. In Barker v Queen, this should not only be a rational inference but it must be the only rational inference. The State heavily relies on the evidence of Simi Ango.

14.      Malo submits Simi Ango’s evidence is that he was the one who John Rams approached and told him about the firearm and he knew someone would be interested to buy the firearm.  He then made arrangements for the sale of the firearm.  From the witness box he also pointed to Junior Robert Badui, the accused person as the person who came and spoke to him about the firearm.  Though he did not call his name, he knows him only as John Rams and he used to live with Maxtone Graham.  He does not mention names of the two other accused persons

15.      The State further relied on the s.96 statements of the accused person.  Firstly that of Junior Robert Badui. At paragraph 4, 5, 6 and 7 of his s.96 statement he says:

“On Tuesday 25thAugust at China Town, East Boroko, NCD Kimuga Konafe, Anasi Apak and I were chewing betelnut and chatting at the betelnut market when John Rams who also goes by the initial JR approached us. John Rams pulled me aside and told me he had a handgun and was looking for a potential buyer. I assumed that because I used to live with Jammie Maxtone Graham. John thought I would know someone who would want to buy a gun. I told John Rams that I did not know anyone who would want to buy a gun. He persisted and just to get him off my back, I told him go and see Simi Ango who John Rams knew as they live at Mango Mine to see if Simi’s boss at Mahin Trading would like to buy a gun.  Upon further enquiry, John Rams told me that he and some boys from Sabama had stolen a gun from some Asians. John Rams then left and told me that he would enquire with Simi Ango to check his boss if he wanted to buy a gun John Rams provided our names to the police because he was angry that we had tipped police off that he was in possession of the gun. We have been framed by the actual mastermind of the Robbery who is John Rams also known as JR”.

16.     The State further submits that Junior Robert Badui's evidence 
further confirms what Simi Ango says. That he infact lived with Jamie Maxtone Graham. The person who Simi Ango refers to lived with Jamie Maxtone Graham. For purpose of no case submission the State submits there is sufficient identification of the accused Junior Robert Badui at this stage to go past the no case submission as he does have a case to answer,

17.      In respect of the accused Anasi Apak and Kimuga Konafe, the State again relies on their s.96 statements. It submits that they say the same thing as Junior Robert Badui, that they were chewing buai at China Town when John Rams approached them. John Rams pulled Junior Robert Badui aside to speak to him. Then Junior Robert Badui told them both that John Rams had a gun and was looking for a buyer. They also both stated they believed John Rams gave their names to Police because John Rams believed they tipped the Police that he was in possession of a gun.

18.     The State further reiterates that this case rests entirely on circumstantial evidence. There is no dispute, the robbery took place. The gun in question was the stolen gun. The only issue relates to identification of the accused. There is only one inference that can be drawn. The three accused were involved in the armed robbery. That Junior Robert Badui been in possession of the firearm, infers that he was in one way or another involved in the armed robbery. In relation to Anasi Apak and Kimuga Konafe, they both have a case to answer. 
Their version of events as per their s.96 statements is consistent with each other. Junior Robert Badui had been identified by a State witness. Anasi Apak and Kimuga Konafe support Junior Robert Badui’s version of events. The only inference the court can draw is that they were all involved in the armed robbery and are trying to blame each other.

19.      The further following events should assist the court draw inferences. Anasi Apak and Kimuga Konafe were both arrested after apprehension of Junior Robert Badui. The information police had was that John Rams had told them that Junior Robert Badui was involved in the armed robbery. All three of them were arrested through police intelligence. Constable Nathan Agirimo was unable to identify Junior Robert Badui in the dock as it was a long time ago. That is being honest confirming the credibility of the witness. For the purposes of a no case submission each have a case to answer.

20.      In response to a question from the court about the nexus between the armed robbery and the subsequent events leading up to the arrest of the three accused the state said the following. The firearm was stolen on the 24th August 2015. Michael Lim purchased the gun in September 2015. The three accused were apprehended about the 8-9th September 2015. In an earlier question by the court, it said it relied on the doctrine of recent possession.

21.       Mr. Kolowe in his reply said Simi Ango in his evidence never mentioned Junior Robert Badui. He continuously mentioned John Rams and JR. In the section 96 statement, the accused named John Rams as the one who approached him and that John Rams gave him the gun. He further says that everyone knows him as JR as well. When questioned where JR was from, he said Jiwaka. When questioned where John Rams was from, he said Chimbu. This is clear inconsistency as to who JR is and who John Rams is in relation to the accused Junior Robert Badui.

22.      When a no case submission is made the issues for determination is not whether on the evidence as it stands, the defendant ought to be convicted but whether on the evidence as it stands, the accused could lawfully be convicted. The test is whether the evidence adduced so far by the State supports essential elements of the offence. The issue of proof beyond reasonable doubt doesn’t come into play here. That is a matter ultimately for a decision at the end of all the evidence for both the accused and the State. The State v John Wanjil (1997) N1516. The question whether there is a case to answer at the end of prosecution’s evidence in chief is a question of Law as rightly pointed out by the State.

23.     The issue here is one of identification. The State case heavily hinges on the evidence of Simi Ango and is supported by s.96 statements of the three accused.

24.       Again I remind myself of the principles in law here. When the evidence is wholly circumstantial the court must acquit unless facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused: Paulus Pawa v The State (1981) PNGLR 498.

25.      In considering the evidence of Simi Ango, I am mindful and must remind myself of the principles in law relating to identification of the accused. “Where evidence of identification is relevant, the court must be mindful of inherent dangers and the need for caution before convicting on the correctness of the identification. A mistaken witness could be a convincing one.” State v Kobale Rau N1509. I consider this principle to be applicable at this stage of the trial in deciding whether to allow the matter to proceed.

26.      Secondly recognition maybe more reliable than identification of a stranger. However even when a witness is purporting to recognize someone whom, he or she knows the judge should be reminded that mistakes in recognition of close relatives and friends are sometimes made. This matters go to the quality of the identification evidence. The Jury should acquit unless there are other evidences to support the correctness of the identification. John Beng v The State [1977] PNGLR 115.

27.     Bearing this principle in mind, I now look at the evidence of Simi Ango. His evidence is that John Rams approached him and told him about the firearm and he knew someone would be interested to buy the firearm. He then made arrangements to sell the firearm. From the witness box although he did not mention any names he pointed to the accused Junior Robert Badui as the person who spoke to him about the firearm. Although he did not call his name, he only knows him as John Rams and he used to live with Maxtone Graham. He does not mention the names of the two other accused Anasi Apak and Kimuga Konafe.

28.      In his evidence in chief, he talked about JR and John Rams and he never mentioned Junior Robert Badui. He further says JR is also known as John Rams by everybody. In cross examination when questioned he said JR is from Jiwaka and John Rams is from Chimbu. Junior Robert Badui as per the indictment is from Dagua, Wewak, ESP. I would have thought that counsel should have probed a bit more on the identification of the three characters named, where they are from, where they lived, etc. I find the evidence of Simi Ango confusing and contradictory in respect of whether JR is the one and same person as John Rams and how the 2 characters are connected to Junior Robert Badui the accused. I find it hard to draw any inference from the evidence that JR and John Rams is the one and the same person as Junior Robert Badui the person he identified by pointing to him in the dock. I find this to be a glaring and an unexplained anomaly in the identification and connection of the character John Rams and JR to Junior Robert Badui. I conclude that the witness is unsure as to who John Rams is, who JR is and then points out Junior Robert Badui as the person who spoke to him about selling the gun when he never mentioned his name in his evidence in chief.

29.      Furthermore, in his section 96 statements the accused Junior Robert Badui says he was chewing betelnut at China Town, East Boroko when John Rams who also goes by the name JR according to Simi Ango approached them and pulled him to the side and told him that he was selling a gun and was looking for a potential buyer. This is more confusing and doubtful. Who is JR and who is John Rams. Are these the one and same persons as the accused Junior Robert Badui who was alleged to have gone to the witness Simi Ango looking for a buyer for the gun? I don’t know. Although there is some evidence, the issue is, if I accepted it, would it go to the element of identification directly and enable its existence to be inferred from the evidence before me. I do not think so.

30.       Furthermore in response to a question from the court about the nexus between the armed robbery and the subsequent events leading up to the arrest of the three accused the State said. The firearm was stolen on the 24th August, 2015. Michael Lim purchased the gun in September 2015. The three accused were apprehended on the 8th – 9th September, 2015 and it relied on the doctrine of recent possession. But possession by who? There is no evidence that the accused Junior Robert Badui was in possession of the gun nor the two other accused.  I do not see how this connects the three accused to the armed robbery. I do not see any connectivity between the armed robbery event and the evidence of identification produced before this court.

31.      In the circumstances, I will use my discretion and to stop the case. I do not find that the three accused have a case to answer and I accordingly acquit the three accused on the three counts of armed robbery.

Ruling accordingly.
________________________________________________________________
Public Prosecutor	: Lawyer for the State    
Public Solicitor	: Lawyer for the Defence