N9006
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 513 & 514 OF 2019

THE STATE

V

JACKSON VOVOLA
&
VINCENT KONDA

Kimbe: Batari, J
2021: 7th, 8th, 9th June
                
CRIMINAL LAW – evidence – robbery – accused with others allegedly robbed a pay office with actual violence of the employees’ wages – identification - general denials – alibi – defence of – proof of – onus on State to prove beyond reasonable doubt, guilt of accused – onus not discharged – not guilty verdict returned and accused discharged.

Facts

The accused pleaded not guilty to one count of armed robbery in connection with an incident where a group of men entered Waisisi Oil Palm Estate pay office and with actual violence, stole K10,000 in wages and personal items. They chopped the victim, Francis David Tul with an axe and another George Givong with a bush knife. The accused denied being present.

Held:
(1)	Where in a criminal trial, the identification of the accused person is the central issue, it is the duty of the trial judge to be; (a) very cautious in concluding that identification has been established, and (b) that the identifying witness is not only honest in his evidence but also accurate: Jackson Naepe v The State (2020) PGSC 144; SC 2072.

(2)	In weighing up all the evidence before the Court, there is no requirement in law that the relevant facts be established with complete scientific accuracy to meet the standard of proof beyond reasonable doubt.

(3)	The Court was not satisfied, the accused were the masked persons identified at the scene. 

Cases Cited

John Jaminan v The State (No.2) [1983] PNGLR 318
Monde Manuel v The State (2018) SC1732
Paulus Pawa v. The State [1981] PNGLR 498
R v Uno Tam & Maru U'u [1973] No. 766
R v. Ulel [1973] PNGLR 254
Jackson Naepe v The State [2020] PGSC 144; SC2072
SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment)
State v John Beng [1976] PNGLR 481
State v. Stephen Isaac Awoda (1983) N416
John Beng v The State [1977] PNGLR 115

Counsel

L. Rangan, for the State
D. Kari, for the Accused

VERDICT
17th June, 2021

1.	BATARI J:	   Jackson Vovola and Vincent Konda are in Court, upon indictment charging each with aggravated robbery under s. 368(1), (2)(a), (b) of the Criminal Code.  Prosecution alleged, Jackson and Vincent robbed the pay office of New Britain Palm Oil Ltd (NBPOL) at Waisisi Estate with actual violence and that they were in the company of four others.  I think Waisisi Estate is short for Waisisi Oil Palm Estate.  So, I will refer to it hereafter as “Waisisi OPE”, or “the Estate.” Jackson and Vincent have all along denied the allegations.   
  
2.	The issues from the common and disputed facts are:

•	Whether Jackson and Vincent were present at all material times and participated in the commission of the robbery?
•	Can the Court be satisfied on the whole of the evidence; the identification evidence has been established on reliable and accurate evidence of witnesses?  

3.	These issues also bring to the fore, factual issues on identification and the principles of identification evidence.  Other relevant issues from the alibi defence and the defence of general denials are also before the Court for determination.

Uncontested Facts

4.	Between 2.00pm and 3.00pm of 28 December 2018, Francis David Tul and George Giwong were at Waisisi OPE office paying the workers their fortnight wages when six masked men confronted them, armed with guns, bush-knives, and an axe.  The robbers fired a warning shot before entering the office to steal the workers’ wages.  During the robbery, Francis and George sustained axe and bush knife injuries. Francis was also hit with the gun butt.  The mob then left the scene, pursued by the Estate workers.  They stole K10,482.00 in cash being the workers wages and other items of personal properties belonging to Francis and George.   

5.	Both accused were previously employed by NBPOL at Waisisi OPE.  They were terminated at different times in 2018, Jackson in November, and Vincent earlier around May.  Police arrested them in early January 2019.                 

(i).	State’s evidence:  

6.	The State called four witnesses.  It also relied on documentary evidence comprising, a Witness Statement of Clement Wiro; Affidavit of Dr Lee attaching medical reports for Francis and George; Records of Interviews for each accused and Termination Notices by NBPOL for each accused.
  
Evidence of Susan Philip.

7.	The first witness, Susan Philip is a baker with NBPOL, married to the Chairman of the Estate.  They reside in the same building that houses the canteen.  Susan spoke of returning from Kimbe on the date and time in question with her husband.  They parked the vehicle in front of the canteen and she left to collect her pay.  While returning, she heard a gunshot.  A second shot was discharged before she reached their home.  She ushered her children into the house and a while later, Leo Bubu came running towards them, followed by a tall man.  They let Leo Bubu into the house and bolted the door.  She opened the door slightly and saw the tall man pause outside the canteen before continuing to the market where he kicked the Estate nurse’s food storer.  He returned to the canteen and looked up.  Susan recognised him from the woollen cap and his clothes as, Jackson.  She also recognised him by his built, and the way he walked.  She knows Jackson.  Shortly before the incident, her family had treated him for bodily injuries inflicted by Leo Bubu.  Her dog also affirmed it was Jackson because the dog did not bark or attack him as it would of a stranger.  Susan also suggested, it was Jackson because he did not touch the vehicle and the store goods contents.

8.	This witness was clearly assumptive and predisposed in her evidence that the tall, masked person was Jackson.  This was possibly calculated to lend support to the strong talk and belief circulating after the robbery that Jackson was involved in reprisal for the beatings by Leo Bubu and his sacking by NBPOL.  I will return to the witness’s identification evidence and her reliability later in this judgment.                  
 
(ii)	Evidence of Francis David Tul

9.	State’s second witness, Francis David Tul is employed by NBPOL as Field Supervisor at Waisisi OPE.  He testified, that whilst paying the workers their wages a gunshot was discharged.  He tried to investigate but rascals forced the door open with the gun butt, causing him to retreat into the office.  Three robbers entered and one of them he recognised as Vincent Konda cut him on his left shoulder with an axe.  He fell from the blow.  The pay-packets also scattered onto the floor.  The robbers told him not to look up.  They also attacked his boss-boy, Douglas.  Three other robbers entered the office.  One of them told Vincent not to cut him.  He recognised the voice as Jackson’s.  The robbers were masked but he recognised Jackson and Vincent from his prior knowledge of them as former employees of NBPOL, the clothes each wore and their physical appearance.  The robbers were in the office for over 20 minutes.  He followed after them and observed the way they walked as Jackson and Vincent.  He got his bush knife and joined others to chase after them. 

10.	Francis gave his evidence in clear and confident voice.  He however appeared presumptive and exaggerating on aspects of his evidence as will be shown shortly.     

(iii)	Evidence of Margaret Frankford

11.	Margaret Frankford spoke in clear and confident manner.  She lives at the compound with her family.  Her husband is a driver with NBPOL.  Jackson worked with him as a loader.  At times Jackson would eat at their home.  She heard two gunshots.  After the second shot, she saw Leo Bubu being chased towards the canteen.  Jackson ran a head of the others.  When Leo escaped into the canteen, the rascals continued to the market where they damaged the Estate nurse’s food storer.  The gang returned past the canteen and her house.  They were all masked.  She discerned the features of Jackson and Vincent from the way they walked, their stature and described Vincent as bearded with his hair in dreadlocks.  The tall man with the gun, told them to move aside.  She recognised the voice as that of Jackson’s.

(iv)	Evidence of Vitus Kuka

12.	  The last State witness Vitus is employed by NBPOL at the Estate.  From his house, he heard two-gun shots at the pay office.  He heard people shouting, ‘robbery’ as they fled.  Six persons also walked towards his house.  The tall person held a gun, the short person held a knife. The others held knives.  He did not know the tall person.  He recognised the short person by his beard, dread-lock hair and from the way he walked as, Vincent Konda.  The gang came past his house; he grabbed his bush-knife and joined the others in chasing them.  At the mountain, the fleeing robbers gave a warning shot.  The robbers left one pair of shoes which others said belonged to Jackson.  Vitus said when the rascals gave a warning shot, Vincent removed his mask and he saw his face.  He stood about 10 meters from the robbers when he recognised Vincent.

(i) 	Defence’s evidence of Jackson Vovola 

13.	Jackson Vovola testified that he was employed by NBPOL at the Waisisi OPE from 2016 to his termination in early November 2018.  I think he initially resided at the company compound and later moved to Waisisi village where he is married.  Following his dismissal, he moved to Section 10, Kimbe with his family to stay with his parents.  Upon their return to Waisisi village, he heard stories of him being involved in the Waisisi OPE robbery.  So, he went to the police station to clear his name.  Police however, arrested and interviewed him about the robbery.  In the record of interview, Jackson told the police, he was in Kimbe the whole of December 2018 and on 2 January 2019 he returned to Waisisi village with his family.  He surrendered on 14 January 2019.  He denied being involved in the robbery.          

(ii)	Defence’s evidence of Vincent Konda

14.	Vincent Konda said he worked at Waisisi Estate from January to May 2018.  He left the Estate and worked at Garu plantation for three months.  At Christmas, he went to Togulo plantation.  He was at Kumbango at the time of the incident.  In early January 2019, he went to Mosa to enquire about his superfund.  (I take judicial notice of the fact that NBPOL main mill and central offices are located at Mosa).  He was then detained and question about the Waisisi OPE robbery by Mosa security officers.  Vincent denied knowledge of the robbery or being involved in it.                

Principles applied: Basis on which identification evidence is assessed.

15.	It is settled, where in a criminal trial, the identification of the accused person is the central issue, and where identification is made by a person who is either a stranger to or a casual acquittance of the accused person, it is the duty of the trial judge to warn himself or herself in evaluating the evidence of identification:

a)	to be very cautious in concluding that identification has been established, and

b)	to be satisfied that the identifying witness is not only honest in his evidence but also accurate: Jackson Naepe v The State (2020) PGSC 144; SC 2072

16.	In, R v Uno Tam & Maru U'u [1973] No. 766 the Court proposed the following considerations as a guide to determining reliability of the identification witness:

(i)	How long the person being identified was under observation;
(ii)	The type lightings under which the identification was purportedly made;
(iii)	The distance from which the identification was made;
(iv)	Anything peculiar about the person being identified that impressed itself        		upon the witness;
(v)	Any special reason for remembering the person;
(vi)	How long afterwards was the witness asked about the person seen;
(vii)	How the description then was compared with the appearance of the 			accused.

17.	It was later emphasised in State v John Beng [1976] PNGLR 481:  

“When identification relied upon is that of a single witness it is proper that a jury should be informed that the identification was critical, and that the mistakes have in the past have occurred in regard to identification thereby occasioning a miscarriage of justice, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are: what opportunity the person identifying had to form a judgement on the identity of the person who committed the crime – the position of the parties when the identification was made, the lighting, the opportunity to form the judgement, and generally the circumstances as to the identification.” (Underlining, mine)

Principles applied: Standard of proof

18.	Where in a criminal trial there is evidence of identification which implicates the accused person as to his presence and participation, the question remains whether the State has proven its case against him beyond reasonable doubt, consistent with the   constitutional right to presumption of innocence until proven guilty in a court of law (Constitution s. 37 (4)(a)).
 
19.	The high requirement for proof of guilt does not mean that the State must prove every single fact beyond reasonable doubt. What the onus requires of the prosecution is to prove each element of the offence charged, beyond reasonable doubt.  In Naepe v The State (supra), the Supreme Court made these observations: 

“The rule of the law that guilt must be proved beyond a reasonable doubt does not require that the relevant facts be established with complete scientific accuracy:  R v. Summers [1990] 1 Qd R 92. 

Submissions 

20.	Defence counsel, Mr Kari submitted, based on the fact of the robbery being admitted, the critical issue of who did it and the positive identification of the person involved is not easily resolved because the robbers were masked.  Counsel contended, the evidence of the State witness on purported identification of the accused persons by their physical appearance, the way they walk, the clothes worn by them, and voice recognition are inadequate and unreliable to be worthy of believe.  The evidence of voice recognition was impaired by the robber speaking through the face mask overlaying the mouth and hence unreliable.  And as the witnesses would be traumatised by the unfolding robbery and the actual violence, their concentration level would have been so reduced, the probability of making a mistake was high. 
 
21.	Prosecuting Counsel, Mr Rangan submitted, the prosecution has adduced more than enough evidence to put Jackson Vovola and Vincent Konda at the scene of the robbery. Each has been positively identified by his physical stature, the way he walked, his clothes and by voice recognition.  The accused was observed at close quarters during daylight.  Counsel further contended that the identification by the witnesses was in fact recognition of someone well known to the witnesses.  Each witness had recognised a person he or she had previously known and acquainted with from his previous employment with NBPOL at Waisisi OPE. The reliability and accuracy of the witnesses is very strong, leaving no room for mistaken identification.

Findings and Conclusions (Reasons for Decision)

22.	There is identification evidence implicating both accused persons.  It points to a strong prima facie evidence against them.  

23.	There are however, three other vital aspects of the trial to ponder and decide.  The first is the alibi defence of the accused. The second is the quality of the identification evidence. The third is the considerations and weighing up of all the evidence before the Court. I will cover the latter together with the principal issues.  

The Alibi Defence

24.	Neither counsel addressed the issue of alibi during the trial and in the final submissions.  As it was fairly raised on the evidence, I will rule on it.
 
25.	In dealing with an alibi defence, the burden of proof does not shift from the prosecution to the accused to prove an alibi or prove innocence.  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.  See, John Jaminan v The State (No.2) [1983] PNGLR 318.  In my view, the alibi evidence must reach a reasonably good level of probability against the strength of the prosecution case to raise a reasonable doubt.

26.	In this case, each accused person has raised his alibi from the start in the record of interview.  The State has the onus to disprove the alibi defence by investigating the alibi and calling rebuttal evidence.  The prosecution has not done that.  Instead, it relies virtually on the witnesses’ evidence of identification to disprove the alibi.  

27.	In the absence of any direct evidence impinging the alibi defence, I find the alibi evidence of each accused person has reached a reasonably good level of probability against the strength of the prosecution case.  Hence, the State witnesses’ evidence must be very strong to disprove each respective alibi defence.

Identification evidence 

28.	In assessing the identification evidence, I am reminded to be very cautious in concluding that identification has been established, and the Court must still be satisfied, the State witnesses were not only honest, but each witness was also accurate in the evidence he or she gave.  

29.	In this case, the Court must be satisfied of the honesty and accuracy of the witnesses on several aspects of the identification evidence in contention namely, identification by prior knowledge (recognition), voice recognition and identification by observation of physical features, movement and clothes worn by the person being observed.  It is trite that all these are dependent on prior knowledge.  I will cover these aspects of the evidence together. 

30.	The State witnesses commonly spoke of knowing each accused in one context or another when the accused was employed by NBPOL at the Estate.  None of the witnesses however spoke of any special physical feature or peculiar personal attribute of Jackson Vovola or Vincent Konda that made him stand out from the many other employees at the time of his employment.  The common description at the time of the robbery was “tall man” for Jackson and “short man” for Vincent.  By no stretch of imagination, those descriptions can fit anyone.  There is nothing extraordinary about their heights, or the way they walked, having observed them in Court.  For instance, it would be closer to Jackson to describe him as slim, tall and light skinned, if indeed, the witness previously knew him as slim, tall and light skinned and bore the same features at the time of the robbery.  It will also make the description more reliable to mention the hair colour or any facial or body mark (tattoo, birthmark, scar etc).         

31.	On voice recognition, two witnesses said they recognised Jackson’s voice.  The proven fact is, that the tall person the witnesses heard speaking had the mask covering his mouth and what he said was abrupt and short.  He did not carry on a conversation with the witness or anyone.  I accept the defence’s submission, that speaking through a mask has high probability of the voice being muffled and distorted.  The value of any evidence of voice recognition is lessened when speaking through cloth covered mouth.  It is not a good and reliable measure for identification by voice recognition.

32.	The second State witness Francis Tul spoke of hearing and recognising the voice of Jackson in telling Vincent not to attack him.  That evidence is not totally reliable as ascribed earlier.  Too, the witness had assumed only that Jackson would have that compassion as he had befriended him (witness) when he first started work at the Estate.  Aside from the difficulty in accepting his evidence of voice recognition, I have difficulty believing this witness’s story.  He is unreliable on several aspects of his evidence.  For instance, he clearly exaggerated about the time the robbery took place.  He said the robbers were in the office for some 20 minutes.  

33.	I find however that the robbery time was defined by two gunshots.  The first was before the robbers entered the office.  They discharged the second while making their getaway.  The shots were only a few minutes apart.  Susan Philip said she was still walking back from the pay office to the canteen, a distance she estimated as from the witness box to the police station (50 to 70 meters), when she heard the two shots.  The other witnesses also gave similar impression of the shorter timing of the robbery.  In any event, the time factor is an enemy in any robbery incident.  No robber will deliberately linger at the scene, hoping not to get caught.  The stakes are too high for any time-waste.  I find that the robbery happened fast in a very short time space.     

34.	The witness’s story of running to his house to fetch his bush knife and pursing the robbers is incredibly fanciful, it defied logic and common sense.   This was the man who had just been seriously injured with an axe.  The medical report showed he sustained a large deep wound measuring 15cm on the left side of the back.  The cut involved all layers including the deep muscles.  He also sustained ragged laceration on the head.  With those wounds, one would possess superhuman powers to still have the energy to chase after the robbers.  The truth is what Clement Wiro said in his documentary evidence.  Some 10 minutes after the robbers had left, he heard crying and shouting coming from the Estate Office.  He investigated and saw Francis and bossboy George lying on the floor with knife wounds they could have died from.               
 
35.	On his recognition of Jackson and Vincent at the scene, Francis said the robbers told him and his bossboy George to lie down and not to look up.  He said he laid between the wall and George and recognised Jackson and Vincent by peeping through his hands.  He had to be lying down on his stomach or on his right side.  Either way, his concentration level within the short space of the robbery would be minimal and severely reduced by the trauma, pain, and discomfort from his injuries.  His demonstration in court of how he covered his face with his hands and peeped showed the difficulty in recognising anyone.  I find his evidence of recognising Jackson and Vincent despite their masked faces untruthful and unreliable. 

36.	I also find the witness’s evidence of clothing worn by the robbers unreliable for the same reasons as stated above.  His description of the clothes worn by Vincent vastly contradicted the evidence of Margaret Frankford.  He said, Vincent wore a round neck T shirt and shorts.  Margaret said Vincent wore an overall.  

37.	The first witness, Susan Philip as I stated earlier, gave presumptuous evidence.   Her version of Jackson chasing Leo Bubu towards the canteen, continuing to the market, and returning to the canteen alone, is unsupported by other witnesses who spoke of Jackson being in the company of five others throughout.  I also find her evidence of her dog not barking because it knew Jackson, most fascinating.  The tall, masked man was not alone. He was with other persons unknown to the dog.  Naturally, the dog would sense trouble and become agitated and territorial.  The dog did not react.  Only the dog can explain why it did not bark at the robbers.  

38.	The witness also spoke of observing Jackson through a slightly ajar door and within short time spaces.  Her attention level would be divided between what she was seeing, her own safety and that of her family.  It is also highly likely she had a restricted view and observation of the person she was purportedly recognising as Jackson.  The fact that she did not speak of the presence of the others supports that deduction.  She probably made up the story of seeing Jackson alone.

39.	Another aspect of the witness’s story I find intriguing is, that Jackson was a former Waisisi OPE security guard known for wearing a particular highlands woollen cap.  The tall, masked man she saw was wearing the Estate security guard uniform and the same woollen cap.  One may ask, why would a robber go to all lengths to mask his face to avoid recognition and yet wear obvious clothing items that would easily give him away?  It does not make sense.  I think the descriptions of clothing worn by Jackson and Vincent were all made up to augment the strong belief that the two were involved in the robbery in retaliation against NBPOL for their sacking.                 

40.	I also find it incredulous, Susan Philip would position herself next to the main entrance door, oblivious to the obvious danger from rascals in hot pursuit of Leo Bubu, while two male adults hid in the bathroom.  Susan spoke of the whole lot of them being in the bathroom while her husband and Leo Bubu propped themselves up against the bathroom window to watch the retreating robbers.  There is some confusing stories here.  I do not find the evidence of Susan Philip truthful and reliable on the issue of recognition.    

41.	The evidence of the third witness Margaret Frankford of seeing the robbers chasing Leo Bubu, when considered with the evidence of Susan Philip, seemed to imply, the tall person would be Jackson because he had an axe to grind against Leo Bubu.  If that was to be so and the hate for being assaulted by Leo Bubu resulting in his termination was so intense, then why didn’t Jackson pursue Leo Bubu into the residence?  Leo Bubu was not called to explain who he was fleeing from.  That omission is crucial in the State’s case.  It would tie up the loose ends.

42.	This witness also gave evidence on recognition of the accused persons from their physical appearances, the way they walked, the clothes they wore and the way they spoke.  The observations made earlier on those aspects also apply here.  There is nothing peculiar that made them stand out from any other masked person.

43.	  Furthermore, Margaret was observing persons retreating from a robbery scene.  Those persons had just committed a very serious crime and were no doubt in a hurry to leave the scene.  There is indeed evidence of workers of the Estate rising up in arms to chase the robbers.  She observed those persons both from afar and closer distance but within shorter span of times. Too, her description of Vincent with a beard and hair in dreadlocks is not supported by Francis David Tul though it has some support in the evidence of Vitus Kuka.  The evidence is that Vincent’s chin was fully covered by the mask such that the beard would not be apparent.  Regarding the hair dreadlocks, this could be any person.    

44.	The evidence of Vitus Kuka also suffers from the same poor quality.  I find the witness’s evidence of coming within 10 meters of the robbers and of Vincent taking his mask off, incredulous, and highly improbable.  It would be the most foolish thing for a fleeing robber to deliberately remove his mask in the presence of those in hot pursuit.  Furthermore, getting too close to an armed gang that is desperate to avoid capture has its own inherent dangers.  There is a very high probability the gang would resort to violence so that their escape is not impeded. The witness clearly exaggerated in his story on recognition of Vincent Konda.    

45.	In those circumstances, one must be very cautious in concluding that the identification has been established and that the witness was honest and accurate in his or her evidence.  On the whole of the evidence, I am not satisfied of the honesty and accuracy of the State witnesses on those matters going to the quality of identification evidence, bearing in mind that though recognition may be more reliable than identification of a stranger and even where the witness is purporting to recognize someone whom he knows, mistakes in recognition of close relatives are sometimes made:  John Beng v The State [1977] PNGLR 115. 

46.	I am not satisfied the State has discharged the onerous responsibility of proving the guilt of each accused person beyond reasonable doubt.  I find each accused not guilty.  They are to be discharged forthwith.  I also order that the bail money for Jackson Vovola be refunded forthwith. 

Ordered accordingly.
____________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused