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State v Katu [2024] PGNC 148; N10805 (30 April 2024)

N10805


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 1027 OF 2018


BETWEEN:
THE STATE


V


JERRY KATU
Accused


Lae: Polume-Kiele J
2018: 1st October, 4th December
2019: 5th February, 5th March
2020: 2nd December
2021: 17th February, 3rd March, 12th & 30th April
8th & 20th July, 1st September, 1st October
1st & 7th December.
2022:1st March 3rd & 12th October
2023: 27th April, 5th June, 17th July, 6th September
3rd & 5th October, 6th November, 5th December
2024: 6th February, 18th March, 3rd, 19th, & 30th April


CRIMINAL LAW - Verdict- armed robbery – s 386 (1) (2) (a) (b) (c) - elements of charge of armed robbery – identification evidence – alibi evidence - credibility of witnesses - The State invoked section 7 (1) (a) (b) (c) and s 8 – Criminal Code – guilty verdict returned- conviction entered pending sentence.


Cases Cited.


Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
Alois Erebebe & Taros Togote v The State (2011) SC1135
State v Bola [2011] N4358
State v Kissip [2020] N8184
State v Jack Mota (CR. No. CR No. 1090 OF 2017, 10 June 2021, (Unreported judgment),
State v Kintangwah [2022] N10338
The State v Theo Yasause (2012) N4871
John Jaminan v State (No.2) [1983] PNGLR 318


Counsel:


Ms S Joseph, for the State
Mr. J Johns, for the Accused


RULING ON VERDICT


30th April 2024


  1. POLUME-KIELE J: On 8 July 2021, an indictment was presented by Ms Langtry from the Office of the Public Prosecutor, indicting the accused, Jerry Katu with one count of armed robbery contrary to section 386(1)(a)(2)(a)(b) of the Criminal Code.
  2. On arraignment on he pleaded not guilty. Trial was conducted on the same day and concluded on 9 July 2021.
  3. At the close of the State’s case, the Defence raised a “No Case to Answer” and the matter was adjourned until the hearing of the “No Case to Answer”
  4. On 27 July 2021, the Court heard the “No Case to Answer” submission.
  5. On 7 December 2021, the no case to answer was dismissed.
  6. On 12 October 2022, trial resumed, and the Defence called its witnesses to give evidence.
  7. On 9 September 2023, Counsels address the Court on verdict. Ruling was reserved, which I now deliver.

The charge


  1. The offence of robbery under s 386(1)(a)(2)(a)(b) of the Criminal Code reads:

“386 - THE OFFENCE OF ROBBERY.


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

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


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

(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.


The elements of the charge


  1. The State must therefore prove the following elements:
  2. For our purposes, “robbery” is defined by Section 384 of the Criminal Code. Section 384 provides:

'384. DEFINITION OF ROBBERY.


A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery'.


A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing: section 365(2) of the Criminal Code.


A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent to permanently deprive the owner of the thing of it: section 365(4)(a) of the Criminal Code.


The State’s case


Allegations – one count of armed robbery – s 386 (1) (2) (a) (b) (c) – Criminal Code Act


(A) Oral Evidence


  1. To establish its allegations, the State called four witnesses namely, Benedict Sam, Erica Anis, Chief Sergeant Manu Pulei and Senior Constable Jeffrey Kowor who all gave oral evidence under oath and were subject to cross-examination.

(B) Documentary Evidence


  1. The State also relied on a number of documents were tendered into evidence by consent of the parties. These documents were:

(i) The Record of Interview dated 16 March 2018 of the accused and the Investigating Officer and his Corroborator.


(ii) A flash drive (memory card) contained a number of (CCTV footages) videos showing the scene of the alleged crime at Huon Gulf Hotel and the number of persons who participated in the alleged crime as it was taking place within the Huon Gulf Hotel and Apartments on 11 March 2018 at 8.00 a.m.


Evidence in Chief


(i) Sam Benedict
  1. Sam Benedict gave sworn oral evidence under oath and was cross-examine. In his testimony, he testified that he is an employee of Huon Gulf Hotel. He said that in 2018 two customers came in and asked for a vacant room. One was a tall and one was short. The tall person wore wool cap and long sleeved which was folded up. He gave the paper to him, and he wrote his name down on the paper. He entered it into the system, and he paid, and Sam gave him the Room key. The other person was sitting far so Sam could not recognize him clearly. He wore a cap and was playing with his phone. The distance between them was estimated to be 12 meters. He wore white shirt and short trousers. He looked like he was from Morobe. The lights in the room were on and it was bright enough. The red phone was identified by Sam as the phone used by the man. When he went to the police station the police showed him the phone and he said that's the phone he saw the suspect holding on the night the room was booked.
  2. When he and Editha went to the police station, he testified that Editha confirmed that the accused was the suspect involved in the alleged armed robbery.

Cross-examination


  1. In cross examination he was asked to describe the type of phone that he said, the suspect was holding, he said he couldn't see the brand of phone but a red phone. He also states that the light was bright enough for him to see inside the reception at that time. He states that the suspect was wearing a cap. As to how many times, he has seen the suspect, he answered only one time he saw the suspect. He didn't see him clearly because he was busy.

Re-examination


  1. In re-examination he said he was busy but maintained that the man sitting on the chair at the reception is the accused who is now in the dock.
(ii) Erica Anis
  1. Erica Anis gave sworn oral evidence under oath and was cross-examined. In her evidence she testified that she is the employee of Huon Gulf Hotel. She was present on the day of the robbery. She looked into the reception and saw different people standing there in civilian clothes, there was someone pulling the drawers in the reception. She could see him wearing a long-sleeved blanket shirt made of wool. It was coloured white, red, and black. There was another man walking in and out whom she couldn't see. She went to inform the guards and there were persons who jumped off a white ten-seater who came and pushed her into the guard house. She didn't know what happened outside. She didn't see the face of the robbers. She didn't see how they left.
  2. She was not cross-examined.
(iii) Chief Sergeant Manu Pulei
  1. Chief Sergeant Manu Pulei gave sworn oral evidence under oath and was cross-examined. He testified that He graduated in the year 2000. He has been attached to the National Criminal Intelligence Unit for 16 years. He deals with local criminals and stores them in the system. He deals with transnational crime as well. He has some experience in the Pacific in 2015-2016. He also does intelligence with PNG Customs and other agencies. He has a certificate to fly drones for the purpose of collecting intelligence.
  2. He states that the accused Jerry Katu is not new to Manu Pulei. He has been arrested and charged for similar offences and has been in and out of the police station. The most recent being the Seeto Kui armed robbery. He knew Jerry Katu as far back as 2005-2006. They have a database on him.
  3. He also states that there had been a robbery on 11 March 2018, and he attended to the scene after the robbery. In that robbery, the suspects used a white 10-seater which they abandoned at the abattoir.
  4. He states further that in 2014, a robbery had also occurred at Huon Gulf Hotel and that is how he came to know there was a CCTV there. So he went in and asked the management to play the CCTV footage when it was shown, he states that he recognised Jerry Katu, the accused.
  5. After viewing the footage and obtaining the documents he went to the police station. He then advised Timothy Hangat to submit a crime report on the robbery.
  6. He subsequently instructed Robinson Dominic to apply for a search warrant for the accused, Jerry Katu’s residence.
  7. He states that on 14 March 2018 the application was filed and on 15 March 2018 they executed the search warrant. When the police turned up at the residence, he states that he knocked on the door and executed the search warrant. They searched the room and looked for clothes that the accused wore during the robbery but couldn't find any.
  8. However, he recalled that one of the witnesses said there was a mobile phone which one of the suspects used when they went to book the room. So he collected a couple of phones and a flash drive and a memory card which were on the bedside table found at the house of the accused, Jerry Katu. He states also that the red and black phone was identified by the victim at the reception, and he stored the items away and to be passed to the State.
  9. He states further that they took the accused to the police station where the witnesses identified the accused. Thereafter, a crime report was submitted straight after the witnesses identified the accused as one of those who booked the room on the Saturday night that the suspects checked in and slept. On Sunday in the process of checking out they held up the staff.
  10. Here, I must point out that the method of adducing evidence by referring to photographs and CCTV footages taken by security cameras projected on wide screen by a multi-media projector in court is not new. It has been used in trials before the Court: see State v Bola [2011] PGNC 93; N4358 (12 July 2011), State v Kissip [2020] PGNC 17; N8184 (7 February 2020), State v Jack Mota (CR. No. CR No. 1090 OF 2017, 10 June 2021, (Unreported judgment), In those cases, the use of CCTV footage has assisted the court in its deliberations including counsels in running their trials. Its value is appreciated.
  11. I now come to this case, in the CCTV footage that was tendered into evidence by consent of the parties. The CCTV footage was adduced through Chief Sergeant Manu Pulei in his evidence. In slide No. 8, Chief Sergeant Pulei states that there are two men walking out of the room at the Huon Gulf Hotels and Apartments and one of them is wearing a checked shirt and another is wearing a blue shirt. At slide No. 4, the same two persons are appearing, and the accused is standing at the door. He is wearing a long sleeve blue checked shirt. He is carrying a black backpack. Also captured in Slide No 4 is the getaway car, a White Toyota Landcruiser (10-Seater, one of the suspects is carrying a gun).
  12. Chief Sergeant Pulei also states that the other person seen in slide No. 4 was not interviewed. However, he states that the accused is the same person that he recognised as Jerry Katu, and he is seen as the person identified in slide No. 6 of the CCTV footage which captures him walking in the corridor of the Huon Gulf Hotels and Apartment. He is the same person wearing a long sleeve blue checked shirt.

Cross-examination


  1. In cross examination he was asked as to how he came to know the accused, Jerry Katu, he said that the accused has been in and out of the police station and part of his duty was to photograph and profile him, that's why he knew Jerry Katu very well. It was part of his duty to keep a database and maintain it. The Police have Jerry Katu in their system. They also have photographs of him. They keep photographs because people change over time.
  2. He states further that the CCTV footage also reflects the accused, Jerry Katu and that he is the same person silting in the dock. It is Jerry Katu. That's the same person he saw in the CCTV footage. The accused was seen by the victim at the crime scene. Of the four phones that were collected during the search at the home of the accused, Jerry Katu, two of the four phones are owned by the accused person's wife. Chief Sergeant Manu Pulei states that he picked up the phones and the SD card and flash drive beside the accused bed in his house during the search. One of the phones is identified as a red phone.
  3. He was not re-examined.
(iv) Senior Constable Jeffrey Kowor
  1. Senior Constable Jeffrey Kowor gave sworn oral evidence under oath. In his testimony, he stated that he is the investigator in this armed robbery which occurred at the Huon Gulf Hotel. He confirmed that K400 was taken during the robbery at Huon Gulf Hotel.
  2. He was not cross-examined.

DEFENCE’S CASE


  1. The accused pleaded not guilty, so a trial was held. The no case to answer was dismissed on 7 December 2021.
  2. The main defence raised by the accused is that he was not in the company of one other robber in the commission of the offence of armed robbery at Huon Gulf Hotels and Apartments on 11 March 2018. The issue of identification is raised as his defence.
  3. The defence called the accused Jerry Katu and two alibi witnesses namely, Stephanie Katu and Hans Basi.
(i) Jerry Katu
  1. He gave evidence under oath and was cross-examined. In his testimony, he states that he lives at 8 Mile, Tent City. He states that on 10 March 2018 he got on a bus and came to Eriku. He bought zoom fuel to cut grass around his house. He said that he cut grass till 6pm. When he finished, a neighbour, Mr. Hans Basi gave him buai to chew. Mr Basi and his wife then took their market table and left to go into their house. He also went to his house had a bath and slept.
  2. He further gave evidence that on Sunday 11 March 2018, he was still sleeping when his wife brought him breakfast and he ate breakfast. He then changed and he and his wife went to Vanessa and Hans Basi to buy buai. After buying buai his wife went to church, and he returned home. He put on the laptop and watched movies until his wife came back. He did not go anywhere that day.

Cross-examination


  1. In cross examination he said he has been to the police station before. He doesn't know whether the police have a database on him, but he knows that Manu Pulei is a policeman.
  2. He was arrested on 15 March 2018. However, he maintained that he was at home on the day of the robbery.

No re-examination


Hans Basi


  1. The second witness called by the defence is Mr. Hans Basi. He gave sworn oral evidence. In his evidence, he states that he lives at 8-mile Tent City. In relation to the story given by Jerry Katu as to his whereabouts, Mr. Basi confirmed that Jerry Katu was cutting grass around his yard on that day. He also confirmed that he gave a buai to Jerry Katy on 10 March 2018 at around 6pm in the evening.
  2. He also confirmed that Jerry Katu and his wife bought buai from him on 11 March 2018 and she went to church, and Jerry Katu returned home on 11 March 2018.

Cross-examination


  1. In cross examination he said the accused asked him to come and give evidence. They are friends. The accused could go to jail, and he doesn't want him to go to jail.

No re-examination


Stephanie Katu


  1. Stephanie Katu gave sworn oral evidence under oath. In her testimony, she also confirmed that the accused, her husband was at home on 10 March 2018 and 11 March 2018. Her evidence was similar to the accused and Hans Basi.

Cross-examination


  1. In cross examination she said that the accused asked her to come and give evidence. Hans Basi and her husband are cousins. Her husband could go to jail because he was charged.

No re-examination


The matters not in Dispute


  1. From the evidence given by the defence in its case, it is apparent that they do not dispute the following matters:

The Matters in Dispute


  1. The only matter in dispute is whether the accused in company of others committed the robbery on 11 March 2018 at 8.00 a.m., at the Huon Gulf Hotel and Apartments?

The State's Submissions


  1. Ms Joseph for the State submits that there is evidence proving beyond a reasonable doubt each of the elements of the charge. The CCTV footages shows that two men departed Room 25 of the Huon Gulf Hotel on Sunday 11 March 2018 and were joined at the reception by another man. The three men went into the hotel reception as well as the hotel manager's office and held up three employees inside the office. They were armed at the time. Therefore, the State submits that there is evidence that some men working in unison with each other held up the Staff of Huon Gulf Hotel and Apartments on that Sunday, 11 March 2018, morning.
  2. A cash sum of K400 was taken from David Edopa, the property of Huon Gulf Hotel and Apartments. This is confirmed in the evidence of Senior Constable Jeffrey Kowor. Hence, there is evidence supporting the element of property and ownership of the sum of K400 cash taken from the Huon Gulf Hotels and Apartments on the morning of Sunday, 11 March 2018.

Issue


  1. The only element in issue is that of identification of the person who committed the robbery.
  2. In Beng v The State [1977] PNGLR 115, the Court outlined the principles on identification evidence:

'In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.


When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered. '


  1. The evidence of Sam Benedict is that the accused and another person checked into the hotel the night before the robbery. He attended to one of them, who he described as the tall man, and he gave him the key to Room 25. The accused was with the other accused, they entered the reception together, but the accused sat on the lounge. He also said that although the accused was sitting away from his immediate sight, he notices him holding a red phone and he was playing with the phone. The lights were bright enough for him to recognise the accused who accused who was sitting 12 meters away at the time. The two men were allocated Room 25 for the night.
  2. I also note that the State acknowledges that Sam Benedict had not known or seen the accused before the robbery. He said that was the only one time he saw the suspect and he didn't see him clearly because he was busy. However, Sam Benedict gave the accused and his friend the key to Room 25. The occupants of Room 25 robbed the hotel in the process of checking out the next day. Given these, I do acknowledge that his evidence alone may have less weight.
  3. However, the State points out that the identity of the accused, Jerry Katu is supported by the evidence of Chief Sergeant Manu Pulei. According to the evidence of Chief Sergeant Manu Pulei the accused is the person or individual identified and shown in the video image (CCTV footage) taken on 11 March 2018 leaving Room 25 of the Huon Gulf Hotels and Apartments. The person or individual is dressed in a blue long-sleeved shirt and is wearing a green cap.
  4. Whilst Chief Sergeant Manu Pulei acknowledged that there a difference in appearance between his appearance in the video (CCTV footage taken on 11 March 2018 and the appearance of the accused today, he said that this can be explained by the fact that the accused has put on weight since the robbery. The evidence of Chief Sergeant Manu Pulei is supported by the identification made by the hotel staff, Sam Benedict at the police station and the identification of the red phone held by the suspect. The CCTV footage images (slides 4, 6 and 8) which he has identified one of the alleged robbers as one the persons at the scene of the crime. These CCTV footage captures the crime as it is being carried out. It is capturing the armed robbery being carried out and had been tendered into evidence by consent.
  5. Furthermore, Chief Sergeant Manu Pulei maintained that he is able to identify the accused because the accused has been in and out of the police station on similar allegations over time. The police have a database on the accused, Jerry Katu. The accused, Jerry Katu is known to him in his role as a police officer and also the police since 2005 and 2006. Chief Sergeant Manu Pulei in his policing duties has been involved in previous allegations involving the accused. The accused is not new to him.
  6. Given the above, the State submits Chief Sergeant Manu Pulei identification evidence can be accepted because he has known the accused for a long time since 2005 and 2006. He had dealt with the accused on similar allegations before and took his photograph and kept a database on the accused.
  7. This is supported by the admission of the accused during cross examination that he had been to the police station before and that he knows Chief Sergeant Manu Pulei as a policeman. This corroborates Chief Sergeant Manu Pulei's evidence that he and the accused are known to each other.
  8. The identification evidence of Chief Sergeant Manu Pulei is further supported by the identification of the accused by the hotel witnesses at the police station as one of the suspects who committed the robbery. Chief Sergeant Manu Pulei gave evidence that on 15 March 2018 the witnesses were taken to the police station where they identified the accused, and he was therefore arrested and charged.
  9. A further matter which supports the identification evidence of Chief Sergeant Manu Pulei is the identification of the red phone taken from the accused's bedside as the phone held by the one of the suspects on the night the two suspects checked into room 25 at the hotel.
  10. In summary, the identification evidence of Sam Benedict is supported by the evidence of Chief Sergeant Manu Pulei. Further, the evidence of Chief Sergeant Manu Pulei is supported by the identification made by the hotel staff, Sam Benedict at the police station and the identification of the red phone held by the suspect and the CCTV footage images (slides 4, 6 and 8) which places the accused at the scene of the crime. These CCTV footage captures the crime as it is being carried out. It is capturing the armed robbery being carried out and had been tendered into evidence by consent.
  11. The State therefore submits that the identification evidence of the State can be accepted by the Court. The accused was present at the scene and participated in the robbery on the 11 March 2018 at Huon Gulf Hotel.
  12. The next question is whether the alibi evidence of the accused has raised reasonable doubt as to his presence and participation in the robbery.
  13. In John Jaminan v The State (No 2) [1983] PNGLR 318: the leading case on alibi evidence in Papua New Guinea summarised key features as follows:
  14. In Alois Erebebe & Taros Togote v The State (2011) SC1135 set out the principles of alibi as follows:
  15. Applying the above principles to this case, an alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support of it, and not mere speculation. Thus, 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.
  16. In this case, the Defence have raised some evidence in support of the accused's alibi i.e., that the accused was at home on the day before and day of the alleged robbery on 11 and 12 March 2018.
  17. However, the State submits that it has disproven the alibi evidence beyond a reasonable doubt. The State says that the accused's alibi namely, his wife and his cousin Hans Basi, have an interest in the outcome of the matter in that if the accused goes to jail, they each lose a husband and a cousin. The wife will be without a partner and the cousin without a friend and a cousin. They are not independent witnesses.
  18. The State have also submitted to the Court that in this case, the accused specifically asked them to come and give evidence for him on his behalf. The alibi witnesses are not coming to give evidence of their own free will and the need to assist the Court find the truth. They are not independent witnesses.
  19. Having carefully considered the submissions of counsels and accessed the evidence adduced during trial, I have arrived at the conclusion that I will accept and adopt the identification evidence against the accused and will apply the principles on assessment of identification evidence set out in the leading case, John Beng v The State [1977] PNGLR 115 by firstly forewarning myself about the inherent dangers of relying on the correctness of identification to support a conviction.
  20. In this case, I have considered the evidence of identification evidence of Chief Sergeant Manu Pulei who gave evidence that he recognised the accused as the person captured in the CCTV footage image taken during the date of the alleged armed robbery as it is occurring during the early hours of Sunday 11 March 2018.
  21. Chief Sergeant Pulei identified the accused as the person leaving Room 25 of the Huon Gulf Hotels and Apartments. The person or individual is dressed in a blue long-sleeved shirt and is wearing a green cap. Chief Sergeant Manu Pulei in his evidence acknowledged that there a difference in appearance between his appearance in the CCTV footage taken on 11 March 2018 and the appearance of the accused today. The accused has put on weight since the robbery.
  22. I have also considered that aside from the recognition of the accused in the CCTV footage, Chief Sergeant Manu Pulei maintained that he is able to identify the accused because the accused has been in and out of the police station on similar allegations over time and there is a police database on the accused, Jerry Katu. The accused, Jerry Katu is known to him in his role as a police officer and also the police since 2005 and 2006. Chief Sergeant Manu Pulei in his policing duties has been involved in previous allegations involving the accused. The accused is not new to him.
  23. The CCTV footage was tendered into evidence and the Court has had an opportunity to view the CCTV footage and the image displayed in the CCTV footage is that of a person/individual, a man wearing the long sleeve checked shirt as identified by the hotel witness, Sam Benedict, and Chief Sergeant Pulei. Whilst I do note the objection raised by the Defence as to the quality of the footage and image, I must at this juncture say that the image was tendered into evidence by consent. The image is recognisable. I accept and find therefore that the CCTV footage taken on 11 March 2018 is clear enough to enable the State witnesses to recognise and identify the image as that of the accused, Jerry Katu, one of the suspects who committed the robbery.
  24. In addition, his evidence is corroborated by the State witnesses (Hotel Staff) who identified the accused, at the Police Station on 15 March 2018, the day of his arrest and laying of charges. A further matter which supports the identification evidence of Chief Sergeant Manu Pulei is the fact that a red phone was taken from the accused's bedside during the police raid conducted at his home. This item of identification (red phone) was seen in the hands of one of the suspects on the night the two suspects checked into Room 25 at the hotel on 10 March 2018.
  25. Whilst it is possible that an honest witness can be mistaken and still be a convincing witness; and that a witness who is lying might also be convincing. However, in assessing the quality of the identification evidence, I will take into account whether the two State witnesses were purporting to identify a person who was a stranger or someone they recognised (here, Chief Sergeant Pulei gave evidence that he knew the accused, and recognised the accused, which I regard as credible testimony).
  26. In this case, the CCTV footage of the armed robbery was also adduced into evidence by consent. Chief Sergeant Manu Pulei gave evidence that he had viewed the CCTV footage. It must also be pointed out that the Court also viewed the CCTV footage. Chief Sergeant Pulei in his testimony states that images captured in the footage details the accused, Jerry Katu. He recognised him. The accused is no stranger, he has been in and out of the Police system and the Police have a data base on him. He recognised the accused as the person dressed in a blue long-sleeved shirt and is wearing a green cap coming out of Room No. 25.
  27. Furthermore, The CCTV footage clearly shows that a robbery occurred between the hours of 8.00 a.m. and 9.00 a.m. on the premises of the Huon Gulf Hotels and Apartment on 11 March 2018. The robbery involved the taking of cash in amount of K400, the property of Huon Gulf Hotels and Apartment. Money is a thing capable of being stolen (cash), the robbers at the relevant time were armed with a dangerous or offensive weapon, a homemade gun. The accused in this present case is alleged to be in the company of one or more other persons, all the elements of the offence of armed robbery.
  28. Be that as it may, this court finds that there is no rule of law which says that the State can only prove its case by hard credible evidence or direct evidence or oral evidence only. Indeed, the court finds that it is open to the State in any criminal case to prove its case by either direct evidence, or oral evidence or even circumstantial evidence: The State v Ipai Koivi (2010) N3972. In this case, I am of the view that a CCTV footage of any activity or event being streamed live, is credible evidence subject off course to the rule of evidence. In this case, evidence of identification is adduced through the evidence of Chief Sergeant Pulei, who has given evidence of recognising the accused as a person known to him as a police investigator and also through recognition of him as captured in the CCTV footage. Consequently, the accused is no stranger to the witness. Similarly, the accused is also identified by the hotel staff who were close enough to the accused to him some description of him. Consequently, I am satisfied that there is no mistaken identity of the accused, Jerry Katu as one of the alleged armed robbers who robbed the Huon Gulf Hotels and Apartment on 11 March 2018 at 8.00 am.
  29. Sam Benedict said that the person was wearing a cap and therefore he did not see his face, but he saw that he was holding a red phone. A red phone was found on the accused’s bedside, this piece of evidence, I also regard as credible testimony. Consequently, I find that both State witnesses were convincing and believable.
  30. I therefore reject the alibi evidence. The alibi evidence is of no value, especially when it is evident that both witnesses were asked by the accused to provide alibi evidence. It is not independent alibi evidence. Furthermore, when the alibi evidence is weighed against the identification evidence of the State witnesses and other incriminating evidence against the accused, Jerry Katu.
  31. I am satisfied that the State has by a proper and orderly process of evidence adduced during trial proven its case beyond reasonable doubt, that the accused participated in the robbery on Huon Gulf Hotel and Apartments on 11 March 2018 and that he and others stole K400 cash belonging to Huon Gulf Hotel and Apartments. The images contained in the CCTV footage which captured the armed robbery being pursued live cannot be ignored.
  32. In regard to the overall alibi evidence, in the case of State v Kintangwah [2022] N10338 (24 February 2022) (recent judgment of mine) I reiterated that there is deficiency in the accused alibi evidence because all alibi evidence, failed to clearly establish the accused whereabouts at the material or relevant time of the alleged offence, ie., on 10 March 2018 at around 6pm in the evening and at 8.00 am on 11 March 2018 and adopt the statement made in The State v Theo Yasause (2012) N4871 per Kangwia, AJ (then), where the Court acknowledged the principles of Alibi evidence in John Jaminan v State (No.2) [1983] PNGLR 318 in which the Supreme Court per (Pratt, Bredmeyer, Amet, JJ) stated:

“It is not necessary to state them here fully, but it would be remiss of me not to mention here that a defence of alibi is a complete negation as it puts every matter in issue, unlike the defence of provocation or self-defence which are excusatory. The risk of setting up an alibi is that if it is not convincing or false then the accused is left with no answer. The accused must lead evidence of alibi and it must be of sufficient weight, sufficiently credible and sufficiently convincing to create a doubt in order to gain an acquittal. This would depend more on the strength of the prosecution evidence as the accused is not required to prove alibi.”


  1. In concluding I adopt the above statement and point out that “... a defence of alibi is a complete negation as it puts every matter in issue, unlike a defence of provocation or self-defence which are excusatory. The risk of setting up an alibi is that if it is not convincing or false then the accused is left with no answer. The accused must lead evidence of alibi and it must be of sufficient weight, sufficiently credible and sufficiently convincing to create a doubt in order to gain an acquittal...”
  2. I find that the alibi evidence lacks sufficient weight, not sufficiently credible and not sufficiently convincing to create a doubt in my mind to gain an acquittal. The only inference that properly flows from the whole evidence (both State and Defence) is the evidence of Chief Sergeant Pulei who recognised and identified the accused, Jerry Katu as one of the persons who robbed the Huon Gulf Hotels and Apartments on 11 March 2018 and that he and others stole K400 cash belonging to Huon Gulf Hotel and Apartments.
  3. Given the foregoing, it is therefore my view that this question can only be answered when all evidence is before the court and properly weighed and analyzed. I am not obliged to assess and analyze and weigh all the evidence in detail as I am not looking into the question of whether or not the State has established its case beyond reasonable doubt. Rather, the question to be asked and determined before a Judge as a tribunal of law, is whether the evidence as it stands supports the essential elements of the offence.
  4. In conclusion, I am satisfied the State has proven the State’s case beyond reasonable doubt with credible and reliable evidence.
  5. Consequently, I make a finding that the alibi evidence lacks credibility, and I therefore give no weight to it. The alibi evidence is rejected in its entirety.
  6. I therefore return a verdict of guilty against the accused on a charge of armed robbery and enter a conviction of armed robbery under section 386(1)(a)(2)(a)(b) of the Criminal Code Act. The accused is remanded into custody at CIS, Buimo pending sentence.

Verdict accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused


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