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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. N0. 219 & 220 of 2016
THE STATE
V
PAUL IBOR
&
YAWING KITUM
Kokopo: Susame, AJ
2018: 11, 18, 19, 20 21, 27 September,
8, 9,11, 15 & 26 October
CRIMINAL LAW – Particular Crime – Arm Robbery – S 386 (1) (2) (A) (B)(C) Criminal Code - Sum of K13,385.00 Robbed – Issue of Identification -– Principles Applicable – Whether Accused Involved
CRIMINAL LAW – Evidence - Circumstantial Evidence - Eye Witness Descriptive Evidence of Robbers – Discovery of Cash and Rice Bag Found With Pistol, Wool Cap and Two Bullets in Accused Possession
CRIMINAL LAW - Alibi Defence Raised in Denial - Principles Applicable – Whether Alibi Evidence Credible and Convincing
Held:
Cases Cited:
Papua New Guinea Cases
John Jaminan v The State (No.2) [1983] PNGLR 318
Luingi Yandasingi v The State [1995] PNGLR 268
Paulus Pawa v The State [1981] PNGLR 498,
The State v Frank Vau Kamo [2006] PGNC 312; N2991
The State v John Beng [1976] PNGLR 471
The State v John Bosco (2004) N2777
The State v Joshua Sagalol & 8 ors N7236
The State v. Marety Ame Gaidi (2002) N2256
The State v Noutim Mausen (2005)
Overseas Cases
Brown v Dunn (1893) 6 ER 67
Raymond Turnbull & Ors [1970] HCA 21; (1970) 126 C.L.R 321, 3 All ER 549
Counsel:
Miss. Batil Batil, for the State
Ms. Jean Marie Ainui, for the Accused
DECISION ON VERDICT
26 October, 2018
CRIME
[123](1) A person who commits robbery is guilty of a crime.
Penalty: [124] Subject to Subsection (2), imprisonment for a term not exceeding 14 years.
(2)[125] [126] 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.
Elements to prove
Established facts
Issues
Arguments on identification
Arguments on Alibi Defence
Argument on Andrew Tobon’s prior written statement
Arguments on money & bullets and rice bag with pistol and wool cap
Law on identification evidence
“It is important the trial judge or magistrate must be mindful and warn himself that there are dangers inherent in eye-witness identification evidence. This is because there have been experiences over the years sometimes completely honest evidence have shown to be wrong and innocent people convicted.
I quote the relevant passage of the judgment in John Beng v The State and this is what the court stated;
31. His Honor Kandakasi J reiterated the principles in The State v. Marety Ame Gaidi (supra) at page 5 to 6 of the judgment in these terms:
a. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;
b. 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:
1. a convincing witness may be mistaken; or
2. a number of witnesses could be mistaken;
c. Provided such a warning is given, no particular form of word need be used;
d. There should be a specific direction to closely examine the circumstances in which the identification was made;
e. Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;
f. 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;
g. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
h. There should be an acquittal if the quality of the evidence is
bad."
Law on alibi evidence
32. Principles of law on alibi evidence are well founded and laid down in the often cited leading case of John Jaminan v The State (supra). Following that there have been various National Court decisions elaborating on the principles. In The State v John Bosco (2004) N2777, Lay J considered the limited circumstances in which an inference adverse to the accused could be drawn by the accused failure to call a witness to support an alibi. Cannings J in The State v Francis Vau Kamo (supra) summarized the elaboration of the principles by the courts as follows:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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
(f) 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.
(g) 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.
(h) An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence.
(i) 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 alibi.
(j) 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
(k) 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 the record of interview or in the District Committal Court proceedings.
(l) 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.
(m) The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.
(n) 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).
(o) The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.”
Law on circumstantial evidence
33. Counsels have referred the court to the authority of Paulus Pawa v The State [1981] PNGLR 498, which is perhaps the leading case on circumstantial evidence. The law on circumstantial evidence is settled. Quoting from Criminal Law and Practice of PNG 3rd edition at page 639:
“Where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the 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.)
Analyzing of evidence on identification
34. On the issue of Identification State relies on circumstantial evidence. Parties are in agreement with that. It is appropriate at this stage to consider that issue.
State relies on evidence from two witnesses, Joel Guria and Francis Kalo of their description of the accused at the scene of the crime. Also relied on are evidence of the NKCL security guards who apprehended the accused and found two live bullets, an empty 10 kg rice bag which had a pistol, a wool cap and some money in Paul Ibor’s possession and some money found in Yawing Kitum’s possession.
Joel Guria
35. He was the driver of the company vehicle. As he stopped at the gate to be opened by the security guard he saw a person sitting. Obviously that person was seen sitting outside the gate. That person was a stranger to him. (It has not been established whether he saw that person in a flitting glance of him or he had a good look at him for sew seconds).
36. When the gate opened he drove in and went and stopped. The fellow employee with him in the cabin had in his possession the money. He was going to get out to go and open the building.
37. He took out a log book to record the time of arrival and as he began making entry he saw a man’s hand reaching out attempting to remove the vehicle keys. That person ordered him to get out of the vehicle. Before he could realise what was happening he saw directly in front of vehicle the same person he had seen sitting by the gate.
38. He looked to his right to see the person who was telling him to get out of the vehicle. That moment the man opened the door, pulled him out and ordered him to lie down. He said everything happened so suddenly and fast. He said before he got on the ground he looked back at rear of the vehicle and saw a tall man armed with a gun. He was pointing it at the people in cover of his accomplices. He only saw the barrel of the gun. It looked like a big gun.
39. In examination-in-chief when asked to give the description of the person sitting at the gate witness gave this description, “Tall man, light skin, had a beard, wearing a wool cap.” When asked if there was anything about his face he answered he was wearing sunglasses at the gate. When further questioned if he saw the person again anywhere after the robbery that day he said at Rabaul Police Station.
40. He was asked what made him recognize him, he said the wool cap and black shirt he wore. He was asked about his physique he said a tall man, had a beard saw him 3 times. When asked to identify him in court witness pointed to accused Yawing Kitum.
41. With regard to accused Paul Ibor this is what he stated of his identification. He was asked if the person who held the gun was the same person who pulled him out of the vehicle. He said person who held the gun was a different person to the one who pulled him out of the vehicle. He was asked to give a description of the man who pulled him out of the vehicle and said, he is short, not young over 40 years. He was asked you noticed anything about his physical appearance he said everything happened fast, he was lying down, he was not tall, and he had diamond shape legs. When further asked if he saw him again during the day he said at Rabaul Police Station. He was asked to identify that person in court and he pointed to accused as that person.
42. I refer to the relevant parts of what transpired during cross-examination. Witness was asked if it was true he has never seen the accused anyway he said no only time he saw him was at the gate.
43. He was asked if he had provided a statement to the police about the robbery. He said he did. The statement was shown to him which he verified as his.
44. Under further probing by Ms. Ainui about his statement he agreed his statement was quite different from his oral evidence. He agreed that statement he gave to police was a recent one taken after the robbery and agreed that was the true version. He said he cannot recall the facts clearly now after 3 years the robbery occurred but he has told the court his story. He said everything happened fast and he was scared.
45. When re–examined the witness said the story he gave to police and his oral testimony are his and is true.
46. His oral evidence differed from the story he gave to police and reduced to writing. He said he saw a tall guy with a beard, wearing a wool cap and dark glasses and a black collar T shirt with a long pair of jean trousers pointed a pistol at Nick demanded the bag. That man pulled the bag from Nick and came to him and opened the door and pulled him by the collar of his shirt out of the vehicle and he went off balance and fell down. That time there was someone at the back of the vehicle. He was a young guy but did not recognized him. He was about to fall down and did not see the other suspects that got on the vehicle put on the engine of the vehicle and drove off. At the Station he recognized the tall guy with the pistol who held up Nick.
47. At the outset evidence by Joel Guria contains few inconsistencies. His oral evidence was inconsistent with his statement to police taken just one day after the date of robbery. From his oral evidence there appears to be 3 persons who actively threatened them. One person standing in front of the vehicle threatening Nick and pulling the money bag off from him. He was the same person he saw sitting outside the gate. That person matched the description of accused Yawing Kitum. The second person was the one who reached out to take the key and who pulled him out of the vehicle. That person matched the description of accused Paul Ibor. Then there was a third unidentified person standing at the back of the vehicle holding a big gun scaring everyone.
48. In his statement dated 8 September 2015 there was mention of him seeing a person sitting by the gate. During the robbery he saw two robbers. One was a tall guy with a beard, wearing a wool cap and dark glasses. He wore a black collar Tshirt with a long jean trousers. He pointed a pistol at Nick and demanded the bag and pulled it off from him. That same person pulled him by the collar of his shirt out of the vehicle. The other was at the back of the vehicle. He never saw other suspects as he was falling.
Francis Kalo
49. He was security guard who was knocking off from night shift duties. He was at the Depot on the morning of the robbery. He allowed two vehicles in to do their sales. After taking instructions from the supervisor Nick John he walked out of the gate.
50. He saw two persons sitting outside the gate. He pointed to the accused as the persons. He pointed to Yawing Kitum as the one wearing a wool cap and dark sunglasses. He left to see the forklift driver following Nick’s instructions. He returned a short while later and saw the two persons were still at the gate.
51. He went inside the yard and assisted the boys filling up copra sacks. Then he heard the company truck being driven in. He was inside the shed and heard Nick call out there was a hold up. He grabbed a spade and ran outside. Yawing Kitum pointed a pistol at him and he retreated back into the shed. When he came out again the vehicle drove out and the same person pointed the pistol at him. That vehicle headed in the direction of Hamamas Hotel.
52. When led further in examination in chief witness pointed toYawing Kitum as the guy wearing a wool cap and dark sunglasses. He has the same sitting style when he saw him sitting outside the gate. On Paul Ibor he said he was short and fat, cannot remember what he wore. He pointed to Paul Ibor as that person.
53. Under cross-examination he stated, he has never seen the accused before. Pointing to accused in the blue shirt (Yawing Kitum) he said he was the one who held the pistol and pulled the money bag off from Nick. He was not mistaken of the accused.
54. When suggested to him accused was not tall and was not light skin, he said he was the person. They were the two persons he saw and recognized. Even after three years robbery occurred he could still recognize them. When probed further witness agreed he could not recognize them if they wore a wool cap or sunglasses but he could tell and recognize them from the way they sat.
55. In his statement to police dated 8 September 2015 he stated a vehicle with the words Original SSM printed on it came in with copra with 2 boys. A while later the same vehicle returned and left 4 youths with copra. The third truck with the name “Foot Print” drove in with copra and he helped unload the copra. He never recognized the 4 boys who came on the vehicle with the name Original SSM.
56. When the robbery occurred he recognized one of the youths wearing a wool cap with dark glasses. He had a long beard. One other was short and light skin guy. He saw the tall man with the beard armed with a pistol and pointed at them and they drove out in the company vehicle. He saw 4 youths in the vehicle.
57. This witness gave a general description of the two persons he saw at the crime scene. But he admitted he could not recognize them clearly if they wore caps and sunglasses.
58. Joel Guria gave evidence a person standing behind the truck held a gun. It was a big gun. The person had it was pointing down ward. In his statement dated 8 September 2015 given to police a day after the date of robbery he stated a pistol was used.
59. Francis Kalo stated accused in blue shirt (pointing toYawing) pointed a pistol at him. As the robbers drove out the same person pointed the pistol at him. He said it was a small pistol.
60. This is not a case where witnesses gave evidence of recognizing of persons they knew. Such evidence is more reliable though at times mistakes are made in recognizing known persons under trying conditions.
61. This is a case of identification of two strangers whom witnesses have never seen or known prior to the robbery. At times it is often difficult to identify strangers from general description unless there are other circumstantial evidence to add more weight or strengthen the witnesses’ description of the suspects as person(s) involved in committing the crime. Without any connecting evidence it would be unsafe for the court to find against an accused relying on general descriptive evidence of observations done in a bad or poor conditions or scurry or “fleeting glance” situations.
62. However, in either situations all that matters is quality of identification evidence. When the quality of evidence is good a judge may, with the necessary caution or fore warning of the dangerous inherent of the eye witnesses identification evidence enter a finding for the prosecution even if there is no other supporting evidence.
COURT’S FINDING
63. At the outset, the robbery occurred at broad day light. Robbery occurred fast and sending everyone scurrying with great anxiety and fear for safety. No doubt witnesses had a fleeting glance of the robbers that moment and gave a general description of the robbers. As a matter of fact, each of them admitted they could not have recognized them properly.
64. There are some inconsistencies in the oral evidence of the two witnesses. There were slight variations in their account in court to their earlier statements given to police on 8 September 2015.
65. Witnesses have come to court after 3 years to recollect from their memory detail facts of what happened 3 years back. The statements were provided to police while facts of what actually happened was recent and still fresh in their mind. Those statements would be more reliable, than the oral evidence given after 3 years. There is tendency for people with poor memory to be forgetful and not remember correctly the exact details of events that occurred or what was said few years back. Exception with people with eidetic or photographic memory.
66. As such it is more than likely both witnesses could not recall the exact statements they gave to police. They may have given additional descriptive evidence of the accused in court. This is because after the apprehension identity of the accused were known to the witnesses. As such witnesses had no difficulty to identify them in court.
67. It is accepted both accused were strangers to the witnesses until their apprehension. However, important consideration is that Joel Guria was invited by police to go and identify the suspects upon their apprehension. He had no difficulty recognizing the tall guy with the beard. He had the pistol and held up Nick and got the bag. That same person had pulled him out of the vehicle. He also recognized the clothes he wore and the pistol as the one the man held.
68. Francis Kalo also gave similar description of a tall person with a long beard and one short light skin man. The tall man with a beard was armed with a pistol. Their description of the two robbers they saw at the robbery scene earlier in the morning matched the two suspects (both accused) held in custody at the police station.
69. My overall assessment is that there is strong circumstantial evidence from the prosecution. Witness could not have been mistaken in identifying the accused of two of the four persons involved in the robbery.
70. Though having made such observations, I warn myself of dangers inherent in relying on identification evidence of the witnesses for mistakes have been made for wrong persons to be convicted.
71. Consideration of other supporting or connecting evidence is valuable. That leads me to consider the alibi defence and other issues of facts.
Analyzing of evidence on alibi defence
72. Accused had given evidence they had travelled into Rabaul from Kokopo on a PMV bus at different times on 7 September 2015.
73. Paul Ibor said when he got into Rabaul he met up with Dickson who borrowed money from the accused to pay for school fees for three boys attending School at Mega Institute. Dickson gave him K1 350.00 to the accused. He was with Dickson and some boys from Iawakaka when Andrew Tobon arrived. He was with the boys at Trade Well chewing betelnut and telling stories until 10.00am Andrew Tobon left the group. He remained with the group of boys until he walked to Zero Trading where he bought a pair of shorts. From there he caught a bus to Korere village where he met with other boys he named. He walked to Rabuana to look for a man named Takura who he knew. He was not around. He had a bath at the beach dried himself with the clothes he wore. He got change and put his dirty clothes in a Star Rice 10 kg bag. He walked to Boisen High School and he met up with the co-accused who kind of was a stranger to him. Co-accused told Paul Ibor he was from Markham and that he was waiting for a PMV to get into Rabaul.
74. Yawing gave evidence he was at Vunapope with John Paul Palah at his residence. He got on a PMV bus at about 2 pm and got into Rabaul to buy betel nut. He was dropped off at the Page Market. From there he proceeded to Rabuana village to confide with his cousins who works on MV Chebu about the cost of freight of betel nut bag. His cousin was not there and he was waiting for a PMV to return to Rabaul when he Paul Ibor met up with him. Both got on a PMV which had the name Foot Print and travelled into town. They were dropped off at the market where they parted when NKCL guards apprehended them.
75. Three State witnesses gave direct evidence of the actual robbery at Kadalama. The accused maintained their story what they had been doing and where they had been until their apprehension.
76. The only part of the story that should have been tested in compliance with the Browne and Dunn Rule is what transpired during the apprehension of the accused at the market and when they were brought to the police station.
RULING ON RICE BAG, MONEY, and PISTOL & BULLETS
George Vanavui
77. He is the guard who personally apprehended Paul Ibor. He stated Paul was holding the empty rice bag. He got hold of him and accused bent down to get his slippers. The other person (referring to Andrew Tobon also called Todas) came from the back. Same time accused handed the money to him. The witness grabbed hold of Andrew’s hand and called his colleague Moresby Sialis over who assisted and took Andrew over to their vehicle. Witness told Moresby and Sebastian to take the rice bag and the money with them to the police station. At the station a pistol was taken out of the bag.
John Kapolis
78. He is the guard who apprehended Yawing Kitum inside the market. He took him to the vehicle and placed him inside the back cabin. He found the sum of K1100.00 all in K100 notes, fell off from the accused. They drove to the station and he gave the money to the police. He then ordered the other guard and bring the rice bag over to the service counter. Sebastian tipped the bag over and a revolver fell out of the bag.
Sebastian Vema
79. He was one of the guards in apprehending the accused. He assisted John Kapolis in apprehending Yawing. They conveyed the accused to the police and took them inside. While inside he saw the bold head suspect (referring to Paul) attempting to take something out of his pocket. Sebastian grabbed hold of his hand and twisted it and removed 2 live bullets wrapped in newspaper.
Paul Bonnio
80. He is the arresting officer. He confirmed NKCL guards brought in the accused with the rice bag. He said Sebastian handed him the rice bag. He confirmed the pistol, the wool cap, and some cash were taken out of the bag. The 2 live bullets in the newspaper wrapping were not in the bag. They were handed over to him by Sebastian. The cash taken from the bag was K 2 572.00 and other amount given to him was K1 200, 00. He took photographs of the bag, cash, cap, bullets and the pistol which were tendered into evidence by consent. The total sum of K3 772. 00 was handed over to the arresting officer.
Accused Paul Ibor
81. According to Paul the guards left them at the Police Station and left with the money and the rice bag. The bag contained his dirty clothes. Sum of K1500.00 was his personal money. The guards brought back the bag and the money after about an hour on direction of the police. At the Station when the bag was emptied they found the pistol, 2 bullets in a piece of newspaper and the wool cap. Paul denied knowledge of the pistol, two bullets and the wool cap and said his dirty clothes were missing.
Accused Yawing Kitum
82. Accused Yawing Kitum gave supporting evidence affirming that 3 of them were taken to the police station. They were interrogated and severely assaulted by police. He said police removed his personal money from him. He said Police questioned them of the money. Both told police the security guards have taken the money and the rice bag. He said they stayed for a long time and guards brought in the money and the empty rice bag. Two bullets wrapped in a newspaper, a pistol and a wool cap was emptied from the bag. They were again assaulted by police and locked up in the cell.
Andrew Tobon.
83. Witness Andrew Tobon gave evidence in corroboration of the evidence by the accused. He confirmed Paul Ibor handing him the money to give to Dickson.
84. But security guards removed the money from him upon his apprehension. He also stated the guards took them to the station. They left with the bag and the money and hour later the bag and the money was handed over to police upon the direction of police.
85. The crucial piece of evidence that would connect the accused to the crime was the 10kg rice bag in which a pistol, 2 bullets, the wool cap and the money found in their possessions. Paul and denied being in possession of the pistol and the bullets. In his denial he said the bag and the money were never left with the police. The guards took it away. It was brought to the police station one hour later upon direction of police. His witness Andrew Tobon gave evidence in support of this fact.
86. This is a very crucial part of defence story. No suggestions were made to the prosecution witnesses, in particular the guards at cross-examination for them to respond in the agreement or not. The guards have given evidence to the contrary and they were available witnesses for their response. This was necessary in observance of the rule in Browne and Dunn which states: “The essence of the rule was basically for fairness. That if a party is intending to challenge evidence of a witness, the reason for the challenge must be put to the witness during cross-examination. Party challenging must put his version of facts he will lead evidence later to establish, to the witness to give him an opportunity to respond in agreement or otherwise. Failure to do that is tantamount to acceptance of the evidence in chief which cannot be impugned or challenged in the party’s final address.” The resultant effect is that it affects and damages the credibility of the witness.
87. Applying the rule in Browne and Dunn the credibility of the story unconvincing and as unreliable weighed against the prosecution’s evidence. Less weight if not no weight will be placed on that story.
States evidence on the contrary is solid, untainted and has weight. Accused had admitted rice bag was taken from him. He merely denied there was no pistol in it except his dirty clothes. He denied knowledge of the two bullets. Bullets were never found in the bag. They were actually removed from the accused inside the police station when he was taking them out of his pockets wrapped in a piece of newspaper. Also found in the bag was a wool cap and some cash. There is also undisputed evidence Paul Ibor was in possession of K1 500.00 which he tried to conceal and pass on to Andrew Tobon. There is no apparent reason for the guards to make up the story with a motive to frame up a case against the accused.
88. Furthermore, Paul Ibor gave an explanation about the money he claimed as his. I could not easily follow his story. I tried to make some sense of his explanation. Dickson must have negotiated with him earlier for money to meet school fees on behalf of 3 boys attending a Computer School at Mega Institute. Paul must have given him K450.00 per student as a loan totally K1 350.00. He rang and Dickson met up with him. They went to the back of Trade Well where Dickson counted the money and gave him K1 350.00. He had K200.00 on himself.
89. Paul would have had in his possession K1 550.00. According to his evidence K1 500.00 was with him which he handed to Andrew when security guard George apprehended him. He gave the money to Andrew hand over to Dickson for safe keeping. He did that in fear of security stealing the money.
90. Yawing Kitum gave and explanation he came into Rabaul to buy betel nuts. He went to check his brother at Robuana village for the freight cost to ship his betel nuts. The money taken from him was his own. Unlike Paul, Yawing had no witness to support his alibi.
91. To keep on track, so far court has rejected the claim by the accused guards 10 kg bag of rice was kept by the guards and brought to the police station an hour later. Court’s finding to the contrary is that bag had been taken to the police station and its contents emptied when the accused and Andrew Tobon were taken in and interrogated. The bag was emptied and a pistol, some cash and a wool cap were found. Two live bullets were also taken from Paul Ibor’s possession.
92. Essentially the above findings have answered issues nos. 2 and 3.
RULING ON ANDREW TOBON’S STATEMENT
93. The statement dated 10/9/18 was obtained from the witness during the course of trial before the Arresting Officer gave his evidence in court on 19 September 2018. That statement was reduced to writing and dated 10 September 2018. Copy of that statement was served to the defence on 2 October 2018.
94. The exact reason why the arresting officer obtained the statement is uncertain. I perceived that as a tactical attempt by the State to introduce the document for discrediting Paul Ibor’s alibi. Witness Andrew Tobon gave his oral evidence on 9 October 2018. Witness was shown and verified the statement as his. He was subject to cross-examination on the statement.
95. The statement was also viewed by the court. On page 2, 2nd paragraph witness denied he was with Paul Ibor on the day robbery occurred. In court he stated otherwise. Clearly, his statement in court contradicted his earlier statement to police.
96. I have considered objection by Ms. Ainui not to allow that statement into evidence for the prosecution. Section 28 refers to confessional Statements obtained under the circumstances spelt out in the section. The statement in question is not from the accused but by a defence witness.
97. Miss. Batil attempted to introduce the document to form part of State’s evidence in an attempt to impeach the witness. The most appropriate time would have been through the Arresting Officer who obtained the statement in rebuttal of the alibi defence. Document could have been later produced to the witness and cross-examined when he gave evidence.
98. As it is objection by the defence against the document being accepted as evidence to discredit the witness is upheld. The statement dated 10 September 2018 by Andrew Tobon is disallowed and cannot be used to impeach the witness.
99. The ruling answers issue no. 4
FINDINGS ON ALIBI DEFENCE
100. Firstly, Paul Ibor spent a quite a bit of time giving his Alibi story. It was quite a lengthy detail story. His story began on arrival from Kavieng at Kokopo in the morning of the day of the robbery, then travelling into Rabaul on a PMV bus, what he did and who he was with in Rabaul, later catching a PMV to the SSM villagers, what he did there and who he was with there, then meeting up with Yawing who was waiting by the road to catch a PMV into Rabaul up to the time of their apprehension.
101. Yawing Kitum started his story with him staying with friend in Kokopo, then catching a PMV into Rabaul. From Rabaul he proceeded to Robuana one of SSM villages, when Paul joined him at the road side and both got on a PMV and came into Rabaul and they parted when got off at Rabaul Market.
102, I am reminded of the guiding principles on Alibi defence set out in the earlier part of the discussions. I apply them here. It is trite law that law places no obligation on an accused to proving his alibi or innocence. When an alibi is raised onus of proof does not shift to the defence. It remains with the prosecution.
103. Both accused have led evidence in support of their alibi. Except for Paul Ibor Yawing had no witnesses to support his alibi. I caution myself and exercise great care caution before drawing an inference adverse to an accused despite Yawing’s failure to call a witness.
104. Their alibi appeared to be convincing, though not quite convincing enough applying the principle of logic and commonsense. The bit about him meeting up with a Dickson and Dickson repaying his loan with interest chargeable and allowable discount did not impress me. I could not easily follow him. As a matter of fact, he was not accurate in his calculation.
105. Secondly, Dickson had just repaid his money in the morning. Why has it return again with the risk of money being lost or misapplied? The money would have been safe with him without being apprehensive about it being stolen by the guards. His conscience would have been clear to keep the money in his possession unless he had a guilty conscience about something.
106. His actions when viewed objectively was unordinary, abnormal and suspicious. It was an act of someone attempting to conceal evidence particularly just at the moment of his apprehension. At the station Paul demonstrated the same behaviour when he put his hand into the pocket of his trousers and attempted to conceal the 2 bullets, not without Sebastian sighting him and removing them from him.
107. One other observation. Interestingly, both accused came upon each other seemingly for the first time like they were strangers, by the road side at Robuana village, one of SSM villages. Timing seemed perfect. There they travel together on a PMV into Rabaul and were dropped off with other passengers at Rabaul Market. As soon as they got off they parted quickly taking different directions, sensing the locals were being suspicious of them and talking in their vernacular.
108. A further observation. From his alibi, Yawing portrayed himself as someone into buying and selling betel nut. The large sum of money he had with him seemingly was for that very purpose. It is not known from his explanation how long he had been into betel nut trading.
109. Fair bit of money was taken from the accused which they claim was their own. That would have been a real matter of concern. Naturally, a person in such a situation would follow through by taking up necessary action to recover the money and clear his name with an option to file court proceedings. They had ample time to do that even before this court at their trial. Court has not heard from them of actions they have taken, if any to recover the money.
110. I have observed their demeanour in court. They were not impressive. An alibi must be sufficiently convincing to create a reasonable doubt in the mind of the judge not to enter a conviction. To me the doubt I have is not in their favour. Their alibi is unconvincing and unimpressive.
111. A large amount of cash found in the accused possession, the 2 bullets and the bag which had a pistol and wool cap were found in accused possession. They are connecting evidence that add weight to the eye witness identification evidence of the accused involvement in the robbery.
112. This finding essentially answers issue no. 5
SUMMARY OF FINDINGS
CONCLUSION
113. The conclusion reached is that State has discharged the onus of proving guilt.
114. Accordingly conviction is entered against the accused.
_________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused
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