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State v Raima [1987] PGNC 10; N629 (21 September 1987)

Unreported National Court Decisions

N629

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
RODNEY WAK RAIMA

Mount Hagen

King AJ
14 September 1987
17-18 September 1987
21 September 1987

KING AJ: ccused is charged upon an n an amended indictment that on 18 August 1986 at Banz he stole K2,140 from one. Robert Kindua with actual violence, of which amount K2,000 was the property of Kenea e Pty Ltd and K140 the prop property of the said Robert Kindua, and that he was armed with a dangerous weapon namely a shotgun and was in company with others. This indictment alleges an offence under s. 386(2) of the Criminal Code.

Part of the evidence was not in dispute. First there is no doubt that on the morning of 18 August 1986 a coffee company vehicle was held up and its three occupants robbed on a roadway near the Christian Leaders Training College, apparently near Banz. The robbers were armed and made off with money, the coffee company vehicle and some items of property. In order to set up the robbery they first blocked the roadway on which the coffee company vehicle was travelling with their car which was brown in colour. Later the same day the brown car approached a police road block. At that time the accused was among the occupants of it. The car stopped and some of its occupants ran away. The police opened fire and the accused who said he remained in the car, was wounded. He was hospitalized for a time, it seems with two other wounded persons who had been in the car, and has remained in custody since.

I think it is fair to say that all other relevant evidence in the case is the subject of dispute.

The State case relied on two alleged eye witness identifications of the accused as one of the robbers by the occupants of the coffee company vehicle.

The first sighting was of course at the scene of the robbery but what the state relied on was that the witnesses recognized the accused in custody and in court during the trial as being one of the robbers. The accused in his record of interview denied that he was involved in the robbery and gave an explanation of why he was in the car when he was shot by the police. He also called two witnesses as to his movements on the morning of the robbery. His counsel strongly attacked the evidence of identification.

I shall deal with the alleged identification of the accused whilst in custody first because I am firmly of the view that it would be an unsatisfactory basis for a conviction. The accused was, it seems, in cell 10 of Mt. Hagen police station. The three occupants of the coffee company vehicle were brought to the cells in October 1986, some six weeks or so after the robbery. The driver, Robert Kindua gave evidence that he was taken in first by himself by a policeman and shown the cells which had many occupants. He said he identified one of the robbers - one who was armed with a knife and had held it to his throat - but that the accused was not that robber. He said he did not see the accused in the cells. The next state witness, Tobi Koito Dimiri, said he was taken in second by the policeman after Robert Kindua, who was kept apart from him, and that he saw the accused (who was wearing a white T-shirt) whom he recognized as one of the robbers armed with a shotgun. Then the third occupant of the coffee company vehicle, Togia Koima, gave evidence that he went in last and identified the accused to a C.I.B. man named Andrew as one of the robbers, the one who held the knife, and said in the cells this man was wearing the same brown shirt he had worn at the robbery. All three state witnesses who came from Bundi in the Madang Province - said they did not know the accused, or the person in the cells, by name. Then a policeman, whose name was William Nimuko (not Andrew) was called. He said he took all three witnesses into the cells singly, showed them all the cells and all the inmates, and that all three identified the same man and called him by the name of Rodney Wak. He said the man they identified was the accused.

The defence counsel argued that the identification procedure was unsatisfactory and that a line up was to be preferred, and that in any event the evidence of identification was too unreliable. I do not think the procedure followed was any worse than a line up. The evidence was that the witnesses saw a number of cells and numerous inmates, some of whom were similar in build to the accused. If anything the procedure would be more favorable to the accused than a lineup because of the greater numbers involved. But I agree that the evidence of identification at the police station is unsatisfactory. There is a fundamental clash between one witness and the other two as to whether the accused was even in the cells, and there is no basis at all for the policeman’s evidence that the witnesses knew his name and called him by it. If the state case relied only on the evidence of what took place in the cells it would fail.

This brings me to the identification of the accused in court, and to the accused’s own case.

In court all three witnesses who were held up identified the accused very strongly. There was no conflict about his identity between them as in the cells. Moreover all of them did not know him, were from a different part of the country and had no reason to falsely accuse him. The were not, for example, traditional enemies of his line. There were, however, inconsistencies as to matters of detail which the defence argued made this identification unsatisfactory also, especially when the accused advanced a positive case that he was somewhere else. These inconsistencies relied on by the defence can be shortly outlined, as follows:

(i) ; R60ert bundua said the ache accused had a shotgun and was wearing a brown shirt.

(ii) &#1obto Dusaid d a sn andwaandwaring a white T-Shirt.

(iii) 1ogi Togia Koma Koma Koma Koma said he held the knife and was wearibrownt.

I should add that there were in fact other matters on whhe eve of itnesses differed to some extent i.e. the precise time in the morning oing of thef the robb robbery, exactly how many people were involved in the robbery and road block, who drove the coffee company vehicle off and where the accused was in the vehicle as it drove off. However they agreed that there were three shotguns and one knife, that they got a good look at the accused, that the day was clear, that they were scared and that the robbery took a short time.

The defence argued that the inconsistencies were significant; that the identification was unsafe because the witnesses had not seen the accused beforehand and had little time to observe him and were frightened; that I should bear in mind the special considerations as to identification evidence set forth in John Beng -v- The State (1977 P.N.G.L.R. 115); and that in considering the reliability of the identification in court I should weigh against the state witnesses that they had been unreliable in their identification in the cells much closer in time to the robbery. Coupled with the accused’s own case, the defence said these matters entitled the accused to an acquittal.

I was not impressed with the accused’s case as I shall shortly indicate, and despite the criticisms of the State’s evidence by the defence I find it impossible to reject the strong positive identification of the accused as one of the robbers by three witnesses who have no reason to wish him harm and tell untruths about him. Their identification had no fundamental conflict in court as their evidence of the identification in the cells did. The inconsistencies were as to details and it would be suspicious if there were no such inconsistencies and they were all word perfect. They may have had a better recollection for being in fear at the time even though they did not know the accused. John Beng’s case of course covers the ground covered by the defence and lays some emphasis on whether there is only a fleeting glance or whether conditions (i.e. for visibility) were not good: see p. 123. Here the conditions were clear, the witnesses said he had a good look at the accused, and were all definite he was none of the robbers. Two of them overcame a “false start” in that regard but then initial hesitation seemed to me to be a product of their early lack of comfort in the witness box, and it was soon removed.

Accordingly I feel obliged to convict unless the accused’s case is very convincing and I do not think it is.

He finally said that on the morning of the robbery he got up, that his parents went off to the gardens, that he did community work at the village school with others, including two witnesses who were called, and then went home and set off for the store with a small boy from his village, John Koi, and that on the way the brown car came up to them. He said that he did not know the people in the car but that the small boy was related to one of them, Gabriel Anakunda, who was killed when the police opened fire. He and the boy were offered a lift to the store and accepted, getting into a small section of the car at the very back.

Initially in his evidence he made no mention of working at the school. In his record of interview, although not obliged to say anything, he described his movements only by reference to going to the store with the small boy. However it was obviously important that he had done the community work and since he told of going to the store it is surprising that he did not also say he had worked at the school and did not mentioned it at the outset of his evidence. Moreover I am unconvinced by his explanation of how he came to be in the car. My understanding of village life is that it is close knit and if the small boy knew Gabriel Anakunda I think the accused should have known him and said so. If he did not, I find it hard to accept that he would get into a car with complete strangers who knew he was on the way to a store and presumably therefore carrying money when only accompanied by a small boy.

In addition, although the availability of witnesses in this country and the resources for getting them to court are not such as to lead the court to place much importance on the failure to call material witnesses, some comment is appropriate in this case. It was said that a councilor, Bruce Bepua, called the names of the persons who worked at the school and marked them off on a list. Thus there may have been a witness with a written record but he was not called. The small boy was not called but I was told, and I accept, that he was and is very small. The two wounded occupants of the brown car were David Maip and Krai Wi. I was told one of them had been charged with the robbery and the other not charged and released. The accused go to know them in the hospital. In the circumstances it would not have harmed either of them to support the accused as to how and when he got in the car but they were not called. Of the two witnesses called, one was a relative of the accused and one was from his tribe. Unlike the state witnesses they had a potential for bias. There were also some inconsistencies in their evidence but I place no importance on them.

On all the evidence I have no reasonable doubt that the accused was one of the robbers and I convict him of the offence charged.

Before dealing with sentence I wish to say two final things. First I express my concern that another person has been charged with participation in the same offence but was not tried as a co-accused. The only reason can be either that the state seeks some tactical advantage (which would be improper) or that through oversight or incompetence public money is to be wasted on separate trials. Unless a co-accused seeks and is given a separate trial, all co-accused alleged to have been involved in the same offence should be tried together. Secondly, in this case the State opened in the short statement of the alleged facts that the accused used a knife in the robbery and the defence made some play on the fact that two of the three material witnesses said he had a shotgun. Since one said he had a knife there was support for the statement of facts and I did not think there was any conflict which told against the State’s case. I do not know whether the States instructions revealed the two possibilities but if they did I think the indictment should have been framed accordingly and the opening statement of facts been put on the basis that either a gun or a knife was used. I specifically asked the defence Counsel whether he was embarrassed in his conduct of the matter by what took place and he very fairly said he did not think so since his case was to the effect that his client was not at the scene of the robbery and not in any way involved.

Lawyer for State: N. Miviri

Lawyer for Defence: D. Poka