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State v Hawa [1999] PNGLR 483 (4 June 1999)

[1999] PNGLR 483

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

STEVEN HAWA

LAE: INJIA J
May 19; 4 June 1999

Facts

The appellant pleaded not guilty to an indictment containing one count of armed robbery in company laid under s 386 of the Criminal Code Act. The State alleged that the accused with four others armed themselves with 2 home-made pistols and held up one Francis Papalum on 20 February 1998 at around 2.00 p.m., as he was coming out of his office to board his car, with a bag of money to go to the bank, in the sum of K4,516.02 in cheques and cash, belonging to his employer Dunlop Pty. Ltd.

The accused and four others walked towards him and snatched the moneybag from him. Then they grabbed his car keys, forced him into the car with the aid of two guns, and the driver started the car but the car did not start. So they came out of the vehicle and ran towards the main road. Francis then rushed back to his office and rang the police. He was able to identify the five youths.

His Honour was invited to decide the accused’s guilt or innocence purely on documentary evidence from the State.

Held

1. This procedure is proper in law and desirable for economic reasons: see Epel Davinga v The State [1995] PNGLR 263 at 265 - 266. He however reminded himself of the need to exercise great care in evaluating the documentary untested evidence before him and making findings of fact and reasonable inferences from those facts, which are adverse to the accused, given the onus and standard of proof that the State bears in proving its case beyond reasonable doubt.
   
2. His Honour was satisfied beyond reasonable doubt that the Rasta hair man who participated in the robbery of Francis was none other than this accused.
   
3. Before arriving at this decision, His Honour warned himself of the dangers of convicting the accused based on observations made by witnesses under difficult circumstances such as a fleeting glance: John Beng v The State [1977] PNGLR 115 applied.
   
4. He was therefore found guilty as charged.
   

Papua New Guinea cases cited

Epel Davinga v State [1995] PNGLR 263.

John Beng v The State [1977] PNGLR 115.

Counsel

F Popeu, for the State.
A Raymond, for the accused.

4 June 1999

INJIA J. The appellant pleaded not guilty to an indictment containing one count of armed robbery in company laid under s 386 of the Criminal Code Act. The State alleged that the accused with four others armed themselves with 2 home-made pistols and held up one Francis Papalum on 20 February 1998 at around 2:00 p.m., as he was coming out of his office to board his car, with a bag of money to go to the bank, in the sum of K4,516.02 in cheques and cash, belonging to his employer Dunlop Pty. Ltd.

The trial of the matter was a little unorthodox. The only evidence produced by the State is in the form of documentary evidence admitted into evidence by consent. At the close of the State case, the accused opted to remain silent. Submissions on the evidence were made by both lawyers and I was invited to determine the accused’s guilt or innocence.

I am invited to decide the accused’s guilt or innocence purely on documentary evidence from the State. This procedure is proper in law and desirable for economic reasons: see Epel Davinga v The State [1995] PNGLR 263 at 265 - 266. I remind myself however of the need to exercise great care in evaluating the documentary untested evidence before me and making findings of fact and reasonable inferences from those facts, which are adverse to the accused, given the onus and standard of proof that the State bears in proving its case beyond reasonable doubt.

The documentary evidence admitted by consent are as follows:-

1. Exhibit "A" (St): Certified Statement of Francis Papalum
   
2. Exhibit "B" (St): Certified statement of Egilin Gewo.
   
3. Exhibit "C" (St): Certified statement of Susan Temo.
   
4. Exhibit "D" (St): Certified statement of Peter Katek.
   
5. Exhibit "E" (St): Certified Statement of Jack Jure.
   
6. Exhibit "F" (St): Certified statement of Zaipo Anio.
   
7. Exhibit "G" (St): Certified statement of Lukie Kavon.
   
8. Exhibit "H" (St): Certified statement of Ben Uto.
   
9. Exhibit "I" (St): Certified statement of Dominic Nassam.
   
10. Exhibit "J" (St): Certified statement of Maitly Begilam.
    
11. Exhibit "K" (St): Certified statement of Michael Guame.
    
12. Exhibit "L" (St): Certified statement of Daniel Kale.
    
13. Exhibit "M" (St): Certified statement of Max Makeso.
    
14. Exhibit "N" (St): Certified statement of Russel Egimbari.
    
15. Exhibit "O" (St): Certified statement of Don Bosco Mruwari.
    
16. Exhibit "P" (St): Certified statement of Simon Yauwo.
    
17. Exhibit "Q" (St): Photograph taken by S. Yauwo.
    
18. Exhibit "R.1" (St):Record of Interview in Pidgin.
    
19. Exhibit "R.2" (St):Record of Interview in English.
    

Whilst the accused chose to remain silent, his counsel relied on certain exculpatory statements his client made in his record of interview with the police. His case is one of mistaken identity.

The undisputed facts of the case are that on 20/2/98 at 2pm, Francis came out of his office to go to the Westpac Bank to do the days banking. He carried a bag containing K3,626.01 in cheques and K889.91 in cash. When he came out and walked towards his parked vehicle, he saw five youths sitting under a tree at the back car park. When they saw him, they walked towards him and snatched the moneybag from him. Then they grabbed his car keys, forced him into the car with the aid of two guns, and the driver started the car but the car did not start. So they came out of the vehicle and ran towards the main road. Francis then rushed back to his office and rang the police. He was able to identify the five youths. His description of the identity of the five suspects are as follows:-

"I was able to recognised the three suspects out of these five suspects. The first suspect was armed with another pistol and is the one who had a fight with me then pulled the Westpac Banking Bag. He is short, fat and light skin, wore a green short trouser, blue and white stripes collar T/shirt, white cap and KT 26 Dunlop shoes. He is believed to be from Papuan Region.

The second suspect is tall, skinny, short hair and black skin. He wore a blue jean shirt, greyish short trouser and is believed to be from Momase region.

The third suspect was armed with another pistol. He is tall, skinny, light skin, a bit of beard and a Rasta hair. He appeared to be from Morobe.

I later confirmed the descriptions of these three suspects after they had been arrested. That’s all I have to say about this matter."

The other State witnesses Gewo Engilin, Temo Susan and Katech Peter were all employees of Dunlop. They also witnessed the robbery but were unable to identify the five suspects. Only Jack Jure, a tyre fitter with Dunlop, observed the suspects and his description of the five suspects is similar to Francis’. He says:

"I was scared of being shot or attacked so I didn’t do anything. I just stood and watched when they (suspects) ran into the Works (PTB) compound. I only recognised three of them out of those five (5) suspects.

The first suspect who threatened me with a pistol is a tall block, skinny and a bit black skin. He wore a blue jean shirt, short trouser and had a short hair. He appeared to be from the Morobe Province.

"The second suspect was holding a white Westpac Banking Bag which I believe had money in it. This particular person is short and fat in built, wore a green short trouser, blue and black stripes collar T/Shirt, KT 26 Dunlop shoes and a clean-shaven hair. He is believed to be from the Papuan Region.

"The third suspect was also armed with another pistol. He is tall, skinny, light skin, had a bit of loose beard and a Rasta hair. I couldn’t tell what short of clothing he wore. I believe he is from Morobe Province.

I was unable to recognised other two (2) suspects because I was scared that the first suspect had threatened me with a pistol."

When police were contacted, they arrived at the scene when the chase of the five youths was still in progress. With the help of the police dog unit, they chased the suspect towards PTB yard and arrested four suspects out of the five. Const. Zaipo and Const. Dominic Nassam say they actually saw four of the suspects running when they arrived at the scene and chased them. They saw them running between the PTB compound and Fairdeal Liquor building. One of those chased and apprehended was the accused. They recovered the stolen bag with K313.92 in cash and K3,626.01 in cheques from one of the other suspects.

Const. Max Makeso says that on the same day, he was present at the Lae Police Station office when the four suspects were brought in by the police after their apprehension. The four were John Aria Miria, Andrew Michael Sangi, Nathan Jeffrey and Steven Hawa, this accused. Nathan Jeffrey escaped so he was left with the three other suspects. Also brought in by the police was the "complainant" which I infer to be the victim Francis. This is the only inference open and it is a reasonable inference. And Francis "confirmed their identities."

Subsequently, on 22/2/99. Const. Makeso was involved in conducting record of interview with this accused. When the accused was interrogated by Const. Makeso, the other two (2) suspects admitted the offence whilst the accused denied committing the offence. The accused in his record of interview said:-

"Q. 7. Would you recall back to Friday the 20th of February 1998, at about 2pm where were you?

Ans. I was at Niugini Drug wholesale with one of the woman and started to walk along when police came and arrested me.

Q. 8. What were you really doing at Niugini Wholesale Drug area?

Ans. I was sitting down drinking and then my beer finished and that’s when police came and arrested me.

Q.15. According to my information that during the hold up the witnesses identified you that you’ve got a Rasta hair. What have you got to say?

Ans. I have Rasta hair.

Q. 16. I put it to you that you alone had a Rasta hair when police apprehend you in the bush. What have you got to say?

Ans. Yes, that’s true.

Q. 17. I put it to you that there was no woman around when police apprehend you in the bush. What have you got to say about this?

Ans. The woman went out first and I was trying to follow when police arrested me.

Q. 18. I put it to you that there was no other Rasta man apart from you in the bush but you alone that police apprehend. What have you got to say?

Ans. Yes, I know it was I alone that police apprehended.

Q. 19. I put it to you that I have reasonable grounds to believe that you were the only Rasta man involved in this hold up that police apprehended. What have you got to say?

Ans. Yes that’s true police arrested me but I don’t know anything about the robbery."

It is submitted by Mr Popeu for the State that the evidence clearly shows the accused was one of four suspects chased and caught near the scene, shortly after the robbery, and his identification as the man with the Rasta hair was confirmed at the police station by Francis, the victim. The defence counsel submits that there was no identification parade conducted to confirm this and the accused has provided a good explanation as to why he was an innocent bystander in the area.

In my view, although there is some doubt as to the specific role-played in the robbery by the accused, there is sufficient evidence to show that a man with Rasta hair in the company of four other suspects was involved in the robbery. He was easily identified by his physical appearance by Francis at the time of the robbery because he had Rasta hair. The chase and search conducted between the Dunlop, PTB yard and Fairdeal areas was almost immediate and in hot pursuit. The chasers did not loose sight of the suspects because all this took place in broad daylight. Later on the same day at the police station, Francis confirmed the identification of this accused. The accused’s own admissions in the Record of Interview of being present at Fairdeal liquor at the material time drinking beer away and casually walking along with a woman when the chase and search was being conducted with police dog units, has no ring of truth in it. For these reasons, I am satisfied beyond reasonable doubt that the Rasta hair man who participated in the robbery of Francis was none other than this accused.

Before arriving at this conclusion, I have warned myself of the dangers of convicting the accused based on observations made by witnesses under difficult conditions such as a fleeting glance, in accordance with the principles laid down in John Beng v The State [1977] PNGLR 115. In my view, there is no question as to the quality of Francis’ observations because the robbery was committed in broad daylight within very close body-contact by young men who appeared not to wear any masks to conceal their faces. He was able to identify this accused because of his easily distinguishable feature in the form of a Rasta hair. He later confirmed his identification of the accused at the police station. I find him guilty as charged.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.