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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 886 & 888 OF 2001
THE STATE
v.
ELIJAH KASINDU
Kimbe: Cannings J
2009: 9, 10, 11, 17 February
CRIMINAL LAW – trial – armed robbery – identification evidence – alibi evidence.
The accused was indicted for armed robbery. One State witness gave evidence that it was the accused who joined with four other men in holding up her family with a gun and knives outside their home and stealing her father's motor vehicle. Another State witness testified that he saw the accused in the vicinity of the crime scene shortly before the robbery. The accused denied that it was him and gave sworn evidence that he was at another place, watching television, at the time in question.
Held:
(1) Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioned itself, as the tribunal of fact accordingly, the court was satisfied, having regard to the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, that the quality of the identification evidence was sound, as:
- the key State witness was honest;
- she was identifying someone she knew and recognised;
- she was not disturbed emotionally to the point that she was not in a position to remember who the criminals were;
- there was ample time for her to recognise who the criminals were;
- though the criminal had his back towards her and had his face covered, she was only a short distance away;
- light was provided by a lamp;
- though the incident happened almost eight years ago, she identified the accused in the dock without hesitation;
- the evidence of other witnesses put the accused in the vicinity of the crime scene, behaving suspiciously, before the incident.
(2) As to the alibi evidence, the court was satisfied, having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, that its quality was poor and the alibi was, in fact, false, as:
- no notice of alibi was provided to the State, so it is a belated alibi;
- the accused was an unimpressive witness as his demeanour was poor and he gave vague and inconsistent evidence;
- the alibi was uncorroborated.
(3) As to weighing of the identification and alibi evidence, the identification evidence, considered alone, was sufficient to sustain a conviction. The alibi evidence did not give rise to any doubt that the accused was one of the criminals who committed the robbery and, being so poor, corroborated the State's case.
(4) The State proved beyond reasonable doubt that the accused was guilty of aggravated robbery under Sections 386(1) and (2)(a) and (b) of the Criminal Code.
Case cited
The following cases are cited in the judgment:
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Boria Hanaio & Others Cr Nos 122 & 123 of 2007
The State v Francis Vau Kamo (2006) N2991
The State v Noutim Mausen (2005) N2870
The State v Robert Wer & Others [1988-89] PNGLR 444
The State v Sei Nakiking Tubol & Others [1994] PNGLR 378
TRIAL
This was the trial of an accused charged with armed robbery.
Counsel
D Kuvi, for the State
R Beli, for the accused
17th February, 2009
1. CANNINGS J: At around 6.30 pm on Sunday 6 August 2001 an armed robbery took place at the Gaongo oil palm settlement, near Kimbe. A Sepik man, James Maxon Yambuahen, and his wife and daughter were held up at their home by an armed gang. Mr Yambuahen's motor vehicle, a Toyota Hilux utility, was stolen. The accused, Elijah Kasindu, now aged 25, a Sepik man who has lived most of his life at Gaongo, is charged with aggravated robbery under Section 386 of the Criminal Code over his alleged involvement in the incident. He has pleaded not guilty so a trial has been held and this is the verdict of the court.
THE STATE'S CASE
2. Mr Yambuahen is now deceased but before his death, he gave a witness statement to the police. He said that there were five men in the gang and one of them was the accused, Elijah Kasindu. Mr Yambuahen's wife, Lucy Yambuahen, also gave a witness statement that the accused was a member of the gang. Witness statements were also provided by other people who live in the Gaongo area. Aaron Kasim said that he saw Elijah and other boys behaving suspiciously at around 5.00 pm and that afterwards he went to Henry Tan's place at Nahavio to watch a football match on television but Elijah was not present. Stanley Kevin also saw Elijah with some other boys at 5.00 pm. He met them on the road as he was coming home from the Sunday market. Elijah was holding a bushknife and wearing black shorts, a grey tee shirt and carrying a small school bag on his back. Another of them was carrying an item inside betel nut wrappings. George Gerard was coming home from fellowship when he saw Elijah carrying a small black bag. He was with some other boys. All of those witness statements were admitted into evidence without objection by the defence.
3. Two witnesses gave oral evidence. Mr Yambuahen's daughter, Violet Yambuahen, said she was in her room in the house and was about to go to sleep. She heard dogs barking and came outside. There were three boys on the veranda. They had their faces covered. One of them had a gun and held it at her head. He had a mosquito net on his face but she could recognise him as Francis, who used to come to their house and sometimes work with her father. Another threatened her father with a bushknife and demanded the keys to his vehicle. That boy had his back to her but she could tell it was Elijah. She had seen him earlier that afternoon at the junction with a group of boys, wearing black shorts, a faded grey tee shirt and carrying a bag. He was in the same outfit in the evening. Though her family had only moved to Gaongo about six months before the incident, she had come to know Elijah. She knew his name. His father is well known in the community. Elijah was a classmate of her younger brother. She used to see him at the school when she and her mother went there to sell food. She recognised his voice. He was only one metre away from her. It was dark but there was moonlight and light coming from a hurricane lamp. Elijah was the one who got the car keys and drove off. There were two others in addition to those who had been on the veranda: a total of five in the group. It was her first time to experience anything like this. She was afraid when the gun was pointed at her head.
4. Jayden Sari was the other State witness to give oral evidence. He is a New Irelander. He has lived at Gaongo for 30 years. He was coming back from Kapore and called in to see Mr Yambuahen at about 6.30 pm. They talked for 30 minutes. He left and met Elijah and Francis close by. He knew both of them well. They said that they were on their way to see Mr Yambuahen. Elijah was wearing black shorts and a light grey tee shirt and carrying a bag. One of them was carrying a home made gun wrapped in oil palm leaves. They did not have their faces covered. He acknowledged signing a statement for the police in 2001 that said that he did not go in to talk to Mr Yambuahen. However, that statement was not correct as he did go in and he did talk with Mr Yambuahen.
THE DEFENCE CASE
5. The accused presented an alibi. He gave sworn evidence that from 5.00 pm to 8.00 pm on the day on question he was watching television at Nahavio [1 km from the crime scene] with some friends. He gave three names. Then he went home. He knows nothing about the robbery at Mr Yambuahen's house. He only knows that he was arrested for it the next day. At that time he did not know Mr Yambuahen's family very well. They had only recently moved into the community. He was going to school, in grade 8, with one of his sons, Percy, but did not know him well. He also did not know Violet well. Their house is in a different part of Gaongo. He never bought food from Violet. As for Francis, he was raised in the village, not in Gaongo. He did not know him at that time. He was not going around with Francis that day. He knew Jayden Sari but Jayden also lives in a different part of Gaongo.
ISSUES
6. It is agreed that there was an armed robbery on the evening in question and that Mr Yambuahen's vehicle was stolen. What is not agreed is that the accused was a member of the gang that staged the robbery. To determine whether he was involved, four issues must be addressed:
7. Defence counsel, Mr Beli, submitted that the evidence of Violet Yambuahen and Jayden Sari was unreliable. It was very difficult for Violet to make a positive identification. It was dark. The person threatening her father had his back towards her. His face was covered. She had never been held up before. She was feeling fear. She said one of the criminals had his face covered with a mosquito net but did not have a clear recollection of its colour. She had only moved to the area shortly before the incident and it is not reasonable to believe that she would have got to know Elijah in such a short space of time. As for Jayden's evidence, it conflicted with his police statement and should be given little weight. His description of the clothes that he said Elijah was wearing was the same as Violet's description and this suggests that there was a sort of conspiracy between the witnesses.
8. I have considered all those submissions in light of the competing submissions of the prosecutor, Mr Kuvi. I have also considered the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698, which I summarised in other Kimbe cases, The State v Noutim Mausen (2005) N2870 and The State v Francis Vau Kamo (2006) N2991. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
9. Having considered all of the above matters, I record the following relevant considerations:
(a) Both State witnesses gave clear and concise evidence. Their demeanour was sound. It was neither proven nor suggested that they had any motive for giving false evidence. They were honest witnesses.
(b) I accept Violet's evidence that she was identifying someone she knew and recognised. Though only moving to the area six months before the incident, she had come to know Elijah as: his father was a well known person at Gaongo, Elijah was going to school with her younger brother and she used to sell food to Elijah at the school. She saw him earlier in the afternoon at the junction and he was wearing the same outfit as the person who threatened her father with a bushknife, demanded and got the keys to the car and drove away with his companions.
(c) Though this was the first time that Violet had been the victim of an armed robbery and she was scared, there is no evidence that she lost her composure or panicked or that anything else happened that disturbed her emotionally to the point that she was not in a position to remember who the criminals were.
(d) Though the robbery was completed in a short space of time, there was ample time for Violet to recognise who the criminals were.
(e) Though the criminal threatening her father with the bushknife had his back towards her and had his face covered, Violet was only one metre away. She would have been able to recognise someone she already knew by his height and build and voice.
(f) It was dark, but only just, and the lamp on the veranda would have assisted the process of identification.
(g) Though the incident happened almost eight years ago, I do not think that detracts unduly from the quality of Violet's evidence as she identified the accused in the dock without hesitation.
(h) Jayden Sari's evidence, although to some extent inconsistent with the statement he gave to the police in 2001, is significant as it puts the accused in the vicinity of the crime scene, behaving suspiciously, immediately before the incident. Jayden satisfactory explained the circumstances in which his 2001 statement was made. He was an impressive witness. His evidence corroborates the identification evidence.
(i) The evidence provided by the five witness statements (all of which were admitted unchallenged) provides further corroboration of the identification evidence. Both Mr and Mrs Yambuahen named the accused as being involved in the robbery. The evidence of Aaron Kasim, Stanley Kevin and George Gerard all have the accused near the crime scene in the hours leading up to the time of the incident.
10. In light of the above, I have concluded that the evidence of Violet Yambuahen is honest, accurate and reliable. The identification evidence is of very high quality.
2 WHAT IS THE QUALITY OF THE ALIBI EVIDENCE?
11. Mr Beli submitted that the accused could not have been involved in the robbery as he gave sworn evidence that he was at Nahavio watching television.
12. I have considered that submission in light of the competing submission of the prosecutor, Mr Kuvi. I have also considered the principles on alibi evidence in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318, which I summarised in other Kimbe cases, The State v Noutim Mausen (2005) N2870 and The State v Francis Vau Kamo (2006) N2991. I remind myself that if an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. 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. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused's failure to call a witness that might reasonably be expected to support the accused's alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.
13. Having considered all of the above matters, I record the following relevant considerations:
(a) No notice of alibi was provided to the State. Leave of the court was not sought under Order 4, Rule 4 of the Criminal Practice Rules, to adduce evidence of the alibi. Strictly speaking, it should not have been admitted (The State v Robert Wer & Others [1988-89] PNGLR 444, The State v Sei Nakiking Tubol & Others [1994] PNGLR 378). But the prosecutor raised no objection and it was admitted. The admission of evidence and the weight to be attached to it are two different things, however. The circumstances in which the alibi evidence came to be admitted make it a belated alibi. Even in his record of interview, there is no mention of it. This significantly lessens the weight to be given to it.
(b) The accused was an unimpressive witness. His demeanour was poor. He gave the appearance of someone who was very clever: having an answer, apparently, for every difficult question but clearly giving the impression that he was lying.
(c) The alibi was entirely uncorroborated. If only someone had given evidence that they were with the accused watching television at Nahavio. But there was nothing. An accused who gives an alibi but then provides no back-up evidence and gives no explanation for there being an absence of corroboration when it would reasonably be expected to be available, leaves himself exposed to the natural inference that the alibi is a fabrication.
14. In light of the above, I have concluded that the evidence of the accused is not honest or credible. The alibi evidence is poor and I determine that, in fact, it is a false alibi.
3 WHAT IS THE RESULT OF WEIGHING THE ALIBI EVIDENCE AGAINST THE IDENTIFICATION EVIDENCE?
15. Having assessed the two bodies of evidence, I am of the view that the identification evidence, considered alone, is sufficient to sustain a conviction. The alibi evidence does not give rise to any doubt that the accused was one of the criminals who committed the robbery. On the contrary, as a false alibi has been presented to the court, this corroborates and strengthens the State's case.
4 HAS THE STATE PROVEN THE ELEMENTS OF THE OFFENCE BEYOND REASONABLE DOUBT?
16. The State has proven beyond reasonable doubt that the accused was a member of the gang that held up Mr Yambuahen and his family at Gaongo on the evening of 6 May 2001 and stole his vehicle. He was an active participant in the robbery. As I pointed out in a Buka case, The State v Boria Hanaio & Others Cr Nos 122 & 123 of 2007, 24.10.07, the offence of robbery, created by Criminal Code, Section 386(1), consists of four elements:
17. The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber:
18. All elements of the offence of robbery have been proven beyond reasonable doubt. The State has also proven that the accused was armed and that he was in company of other persons. He is therefore guilty of aggravated robbery.
VERDICT
19. Elijah Kasindu is found guilty of aggravated robbery under Sections 386(1) and (2)(a) and (b) of the Criminal Code, as charged.
Verdict accordingly.
__________________________________
Public Prosecutor: Lawyer for the State
Public Prosecutor: Lawyer for the accused
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