N3517

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 826 OF 2005

THE STATE

V.

HENRY TOIGIL

Kokopo: Paliau, AJ
2008:	20th, 22nd & 24th October

CRIMINAL LAW – Verdict – Armed Robbery – Charge of – Not Guilty Plea- Trial – Criminal Code s. 386(1)(2).

CRIMINAL LAW – Issue of Identification – Identification evidence not good. 

Cases cited:
John Beng v. The State [1977] PNGLR 115
The State v. John Beng [1976] PNGLR 471
Jimmy Ono v. The State (2002) SC698
Masolyan Piakali v. The State (2004) SC771
The State v. Tony Pandau Hahuahori (2002) N2185

Counsel:
Mr. S. Kesno, for the State
Mr. F. Kirriwom, for the Accused

24th October, 2008

1.	PALIAU, AJ.:	The accused pleaded not guilty to one count of Armed Robbery. He is charged under Section 386(1)(2) of the Criminal Code.

2.	The brief facts put in arraignment are that on the 17th February 2005, at 9:00am the accused in the company of 5 other persons armed with a homemade gun, bush knives and slingshots went to Suboy Trading Store at Karavia village, Central Gazelle and held up Isidor Didima the store keeper. They stole from the store, goods worth K 823.92 and the sum of K 503.00 in cash, the property of Peter Waki. They used violence to obtain the goods and cash.

3.	The issue before me is one of identification. Was the accused properly identified by the State’s witnesses as one of the co-accused?

4.	At this juncture, I would like to commend both Counsels for the delivery at my request of well written submissions and they ably made oral submissions as well. These submissions assisted the Court very much in the formulation of this decision. 

5.	The State called two witnesses to testify on its behalf. They are Isidore Didima and James Wong. The following documents were also tendered by Consent:

Statement of Peter Waki 	Exhibit "A"	
Statement of Lawrence Peter 	Exhibit "B"	
Statement of Peter Wawaliu	Exhibit "C"	
Statement of Boas Kubil 	Exhibit "D"	
Statement of Poren Yagiri 	Exhibit "E"	
Statement of Bernard Tutmulai 	Exhibit "F"	
Record of Interview in Pidgin 	Exhibit "G"	
Record of Interview in English 	Exhibit "H"	

6.	The Defence did not call evidence. The accused filed a notice of alibi that at the time of the alleged robbery, he was at Kareba. However, he chose to remain silent. 

7.	I accept the undisputed facts as outlined in the submission by the Prosecutions. The Defence contention is mainly the inconsistencies of the accused’s statements to the Police and to the Court. The Defence tendered the accused statement to the Police as prior inconsistent statement. 

8.	As correctly put by both Counsels in their written submissions, the law on identifications is clearly set down in the Supreme Court case of John Beng v. The State [1977] PNGLR 115. This case forewarns the Court that it should be mindful of the dangers and the need to be cautious before convicting upon reliance on the correctness of identification. The Court should consider the likelihood of a mistaken witness to be a convincing one. 

9.	I am called upon to examine carefully and closely the circumstances in which the identification by the State witness Isidore Didima came to be made. In doing so, I must bear in mind that even where Isidor Didima is purporting to recognize the accused as someone he knows mistakes can be made. 

10.	If I find the quality of the identification evidence is good, I should convict the accused. If I find the quality to be poor, unless there is evidence which supports the correctness of the identification, I must acquit the accused. 

11.	There are other factors which I must also take into account when considering the accuracy and credibility of Isidor Didima as an identification witness. Factors such as the opportunities he had when he made the judgment that the accused was Henry Toigil, their position in relation to each other when identification was made, the lighting and the circumstances in which Isidor Didima formed the view that the accused was Henry Toigil. See The State v. John Beng [1976] PNGLR 471 at page 477, upheld in John Beng v. The State (supra) and confirmed in the Supreme Court cases of Jimmy Ono v. The State SC (2002) 689 and Masolyau Piakali v. The State (2004) SC 771.

12.	The State’s in its submission outlined the circumstances in which the identification was made under by Isidor Didima and they include:

(1)		Witness and accused know each other.
(2)		Distance between them was 10 meters, close range.
(3)		Accused wearing same clothes as at the scene of robbery.
(4)		They faced each other as witness spoke to the accused. 
(5)		Duration was 30 seconds, but enough time.
(6)		Identification made in broad day light. Visibility was good.
(7)		No obstruction between them. 
(8)		Witness under no fear. 
(9)		Witness informed villages pursuing robbers that he had identified the accused. 
(10)		Witness went to accused’s house the same day to check whether he was in. He also asked his wife. 
(11)		Two days later accused in the company of the village councillor voluntarily surrenders himself to Kokopo Police Station.

13.	On the other hand, the Defence in its submission outlined also in detail the inconsistencies and contradictions in the statements of Isidor Didima to the Police and what he told the Court. These are:

(1)		Witness was unable to recognise their faces including the accused at the scene. 
(2)		Witness evidence about cracking jokes with the robbers was not in his statement to the Police.
(3)		Witness statement as to the accused dress the previous night contradicts each other. His Statement to the Police was dark blue coat. To the Court was black coat.
(4)		No mention in his statement to the Police of haus-krai that he attended the previous night and no mention that he spoke to the accused. 
(5)		Witness claims he saw accused on Wednesday the night before the robbery, when accused wife says he was not there. 
(6)		His statement to the Police and his evidence in court are inconsistent in relation to whether the accused concealed the homemade gun under his coat or in his mountain bag.
(7)		He contracted himself by saying that he was not in fear when he was hiding from the robbers. 
(8)		How was it that he was not seen when in his evidence in Court there were no cocoa trees and bushes, except coconut trees? 

14.	I have carefully considered the above submission of both Counsels and I am of the opinion that even though the State’s witness had the opportunity to form a judgment as to the identity of the accused, his sworn statements in court and his statements to the Police contained glaring inconsistencies and contradictions that it is unsafe to convict on. 

15.	These inconsistencies and contradictions are not minor. They also affect the circumstances and opportunities in the identification of the accused, so much so that they render into insignificant these circumstances and opportunities that the witness had in forming that judgment. 

16.	The witness’ explanation as to why he did not inform the police of his statements in court which contradicts his statements to the Police, he stated that he did tell the Police but they did not write it down. I cannot and will not accept this explanation. The witness was educated enough to have signed his statement given to the Police. If he had told lies to the Police, there is no guarantee that he would not have told lies to the Court. 

17.	In relation to the issue of the accused surrendering to the Police, the State submits must also be taken into account, in particular when community leaders are involved and the Courts must take judicial notice of. These cases were cited to support that view: The State v. Anis Noki [1993] PNGLR 425 at page 427, The State v. Tony Pandau Hahuahori (2002) N 2185 and Masolyau Piakali v. The State (supra).

18.	From the statement of the State’s second witness, James Wong he stated that the accused was brought to the Kokopo Police Station because he was being suspected. That he detained the accused for his own safety as he had received information that the complainant’s relatives had retaliated against the accused. He stated in his sworn statement that the accused came to the Police Station, not to surrender but as a suspect and made no admissions. 

19.	I consider that the village Councillor’s involvement was not because the accused committed the crime and he was surrendering. The village councillor accompanied the accused to Kokopo Police Station for his own safety and because he is a suspect for further investigations by the Police. 

20.	The inconsistencies and contradictions in the State’s witness identification of the accused have put the credibility and accuracy of that identification into question, thus the quality of identification evidence is poor. I see no other evidence which goes to support the correctness of the identification.

21.	I therefore see no basis for this case to proceed any further to a verdict. The State has not proven beyond reasonable doubt in respect of the identification of the accused. I find the accused not guilty of the crime of armed robbery and he is acquitted accordingly and discharged forthwith.

Ordered accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused