N2394

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR. 385 of 2002

THE STATE

- vs -

TIMOTHY THOMAS MORILOMA (No. 1)

Lae: Manuhu, AJ
2003: 22nd April & 5th May

CRIMINAL LAW - Particular offence - Armed robbery – Identification – Weighing of evidence – Effect of exercise of right to remain silent on accused person’s evidence.

Cases cited:
The State v Simon Sulu Uraken and Jack Charles Joku (1990) N883.
The State v Tony Pandau Hahuahori (No. 1) (2002) N2185.

Counsel:
Ms C. Nidue, for the State.
Mr Mwawesi, for the accused.

5th May 2003.

JUDGMENT ON VERDICT

MANUHU, AJ: The accused, namely, Timothy Thomas Moriloma, was indicted on two related counts of armed robbery. The first count is that on 13th August 2001, at Mangola Street, Lae, the accused stole from a Maria Kalopei ("Kalopei") with threats of violence the sum of K2,000.00 in cash, the property of Lings Freezers. It is alleged that the accused was armed with a factory made pistol and was in the company of others. The second count followed from the first. It is alleged that the accused stole from Emmanuel Mark ("Mark") with threats of violence a vehicle, namely, a single cabin Mazda with registration number BBC 600, the property of Guard Dog Security Services, which was used as a getaway vehicle. It is alleged that the accused was still armed with a factory made pistol and was in the company of others during the commission of the second robbery. 

Evidence led by the prosecution shows that on 13th August 2001, between 2.00pm and 3.00pm, the accused and his accomplices went to Mangola Street where the business premises of Lings Freezers was situated. They were armed with a factory made pistol and some knives. They then held up cashier Kalopei by pressing a knife against her chest and by ordering her to open the till. She pressed the cash register and when it opened she was pushed. She hit herself against the counter and fell. The accused and his accomplices then took the contents of the till totalling about K2,000.00 and rushed out of the store. They then pointed the pistol at driver Mark and his crew, and ordered them to get out of their vehicle.

Mark’s uncontested evidence is that he had driven to Mangola Street in response to a panic alarm at the premises of Lings Freezers. He heard a gun shot as he drove into the premises. Soon thereafter, a person, believed to be from the Sepik area came to his side and pointed a "revolver" at his head and ordered him to get out of the vehicle. That person and five others then got into the vehicle and drove away from the scene.

As the stolen vehicle approached the roundabout where the Rainbow store is, a shootout took place between the robbers and prosecution’s witness, James Wong ("Wong"). In the process, two robbers jumped off the vehicle and ran into the market. The remaining robbers continued their getaway through Air-corps Road and eventually abandoned the vehicle at the business premises of UNW. There, prosecution’s witness, Jim Kari ("Kari"), saw two robbers got off the vehicle. One ran into the UNW premises while the other ran to the business premises of New Guinea Motors Winders with the money bag. The latter was apprehended by Kari and later handed to police. 

Sometimes later, prosecution’s witness Tim Gidisa ("Gidisa") approached the abandoned vehicle. He saw a person wearing a pair of light blue jeans and shirt lying on the back of the stolen vehicle. Gidisa also figured out that the vehicle had lots of bullet marks and, the person at the back of the vehicle, the same person that had the money bag, had been shot around his abdomen. 

Prosecution’s witness Otto Tivon ("Tivon") recalled going to see the abandoned vehicle. The robbers had obviously fled by then. He then drove off to check the old airport and the drain near ICI Dulux premises. He returned to the stolen vehicle and was told that a suspect had been seen at the premises of Laurabada Secondhand Clothing. They went there and discovered fresh blood stains. They followed the stains to the back of the building where some pallets were stacked. The security guards located the accused underneath the pallets and advised the police. He was motionless. As the accused was assisted out, a fresh wound was seen on his chin. He was also wearing a pair of jeans that was too small for him. The pair of jeans was pulled off, and underneath was a sportswear. At that moment Tivon noticed a scar on the accused person’s calf muscle. The accused was taken to the police vehicle and later to the police station.

Prosecution’s witness Carl Foro ("Foro") accompanied Tivon at the relevant time. Relevantly, when they returned to the abandoned vehicle, a security guard at Lauraba Secondhand Clothing signalled for them to go to where he was standing. They were then advised that a suspect had fled in that direction. They followed the side footpath to the back of the building where a stack of pallets was. Foro could see the suspect under the pallets. He had blood on his body and face. Foro assisted in pulling out the suspect who was wearing only a pair of jeans. He was very weak. He also said: "Yupla halpim mi?" to which Foro relied: "That’s what we’re trying to do". The suspect was then taken to the back of the police van. When questioned during examination in chief about the identity of the suspect, the witness pointed to the accused.

The evidence so far shows that only two suspects were apprehended. One was the one with the money bag and shot in the abdomen. The other was the accused, who was located from under the pallets. According to the evidence of prosecution’s witness George Avali ("Avali"), these two suspects were later brought to the hospital for treatment. However, the suspect that was shot in the abdomen later died. The remaining suspect was the accused. 

Avali visited the accused, who gave his particulars as Timothy Thomas Moriloma, twenty five years old, of Baimuru, Yangoru, East Sepik Province. He had a dressing to his lower right jaw as a result of a bullet wound. The accused was cautioned and questioned about the subject robberies. His answer was that he was the driver of the stolen vehicle. 

On 16th August Avali returned to the hospital to see the accused but he was not there. He was told that the accused had escaped in the evening of 14th August. The accused was, however, recaptured on Saturday 27th October 2001 and was subsequently charged for the armed robberies.

The accused was the sole witness for himself. He strongly denied being involved in the robberies. He said he was in his house with his family on the day the robberies took place. He said he was apprehended on 28th October 2001, which was a Sunday, when he was returning from Church service. He was sharing with his wife about the preaching when he was apprehended. Avali, he said, did not interview him until Wednesday of that week. He told Avali that his name was Thomas Leni Marinae and not Timothy Thomas Moriloma, but Avali said to him to make that explanation to the court. 

There is no dispute that the robberies took place. Consequently, the prosecution’s witnesses’ outlined descriptions of the robberies, subject to the pending issue of identification and or involvement, are accepted. 

The accused denies involvement in the robberies. During cross-examination, defence counsel raised the factual issue that, given the considerable lapse of time, the person apprehended from underneath the pallets may have been injured by some other means. The robberies took place between 2.00pm and 3.00pm. The discovery of the person underneath the pallets was made at about 4.45pm. The difference of at least one hour and 15 minutes, it was argued, is long enough to isolate the discovery under the pallets from the robberies. The first issue, therefore, is whether the person found underneath the pallets was involved in the robberies. 

Defence counsel subsequently submitted that the prosecution’s witnesses could have made an error in the identification of the accused because, first, none of them knew the accused prior to the robberies. Secondly, given the shootings, the chase, the fear and the general intense atmosphere the witnesses were in at that time, the witnesses could have been mistaken as to the identity of the accused. Consequently, the argument runs, the accused was wrongly identified and wrongly apprehended on 28th October. The person actually involved and who was apprehended on 13th August was Timothy Thomas Moriloma, who was not and is not the accused. The accused, it is argued, is actually Thomas Leni Marinae, a different person altogether from Timothy Thomas Moriloma. The second issue, therefore, is whether the witnesses positively identified and recognised the accused as the person found under the pallets. If they did, then the accused was properly apprehended on 27th October. If the witnesses were not able to properly identify the accused on 13th August, then the subsequent apprehension of the accused on 27th October was a mistake. 

In relation to the first issue, with respect, I do not agree with the suggestion that the person found underneath the pallets may have been injured elsewhere. In the given circumstances, the lapse of time is not considerable. If that person had been bleeding from about 2.30pm, he would be weak due to loss of blood by 4.45pm or thereabouts. There is evidence that the person found underneath the pallets was weak and "motionless". On the other hand, there is no evidence pointing to another incident that might have caused the injury and bleeding. The only evidence is that there was a shootout following the armed robberies, and; one suspect was found within one and a quarter hours later apparently hiding under the pallets. I am, therefore, satisfied that the person found under the pallets was injured during the shootout, which further means, and I so find, that he was involved in the robberies. 
 
In relation to the issue of identification, with respect, I do not agree that the general intense atmosphere would create any significant difficulties in recognising the accused as the person found from underneath the pallets. To the contrary, when incidents such as this occur, the natural tendency would be one of curiosity. Most people, especially Papua New Guineans, would take steps just to have a good look at the person apprehended. 

In this case, the relevant witnesses had ample time to have a good look at the accused when he was pulled out and later escorted to the police vehicle. Indeed, one of the witnesses spoke to him. In these circumstances, I accept their evidence that the suspect found underneath the pallets was the accused. It follows from this that the recapture of the accused on 27th October was based on proper identification and recognition of the accused as the same person that was apprehended on 13th August. 

This conclusion is further supported by the accused person’s failure to offer any credible resistance to the evidence connecting him to the robberies. Firstly, the accused insisted that he was apprehended on Sunday 28th October and not Saturday 27th October as claimed by the prosecution’s witnesses. I cannot understand how and why the prosecution’s witnesses would lie or be mistaken about dates. From their perspective, a date bears no relevance or importance to the prosecution’s case. On the other hand, the accused indirectly explained his interest in changing the date. He altered the date of his recapture so that he could conveniently but falsely give evidence about having attended a Sunday service.

Secondly, I find certain answers given by the accused to be too good to be true. For instance, after the accused claimed that the witnesses were mistaken in their identification, he was asked: "Why would they be mistaken? His reply was: "Because I was on the other side so it was easy for them to identify me". I cannot believe that the accused could answer in this manner because only lawyers are trained to know that identifying an accused person from within the courtroom may not be sufficient evidence of identification. The point may be clearer in another one of his answers. The accused was asked in chief: "Can you recall what you were doing on 13th August 2001". His answer was: "If there was a special event, I would remember but as I said I was with my family." The "special event" aspect is a copybook answer and is too good to be true. I watched the accused answer the question and I thought he did not answer the question in the natural way. I had the impression that he rehearsed this answer.

Thirdly, the accused claims that his name was Thomas Leni Marinae and not Timothy Thomas Moriloma to add credence to his claim that he was not the person caught from underneath the pallets. Names are incapable of committing offences. I am of the view that, like the date argument, the accused has made up this story. I note the evidence of Avali who said that the accused gave false names of accomplices when questioned on 14th August. I am also of the same impression here. In other words, I am satisfied that the names Thomas Leni Marinae and Timothy Thomas Moriloma were both provided by the accused.

Finally, the accused is entitled to exercise his right to remain silent but if he was wrongly identified and wrongly picked up on 27th October, he would have been at considerable ease to have said so, but he did not, during the conduct of the record of interview to add weight to the explanation he now gives in his evidence. The failure to explain his innocence at the earliest opportunity means that I am unable to appreciate any consistency, and, ultimately, any credibility in his explanations and his plea of innocence. See The State v Simon Sulu Uraken and Jack Charles Joku, and The State v Tony Pandau Hahuahori (No. 1).

In the final analysis, I am satisfied beyond reasonable doubt that the accused was involved in the armed robberies. In the process of fleeing the scene, he was injured in the shootout. He was the one caught from underneath the pallets. He escaped on 14th August whilst receiving treatment at the hospital. He was, however, recaptured on Saturday 27th October. Accordingly, I find him guilty as charged on both counts.

Verdict: Guilty as charged on both counts.
____________________________________________________________________
Lawyer for the State		:	Public Prosecutor.
Lawyer for the Accused	:	Public Solicitor.