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State v Enoch [2021] PGNC 305; N9073 (23 February 2021)

N9073

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 302 - 305 OF 2018

BETWEEN
THE STATE

AND
JOE ENOCH, RAYMOND TAIGON, HELDEMA REINI & PIUS MICHAEL JONDUO

Wewak: Rei, AJ
2021: 23^rd February

PRACTICE AND PROCEDURE – Criminal Law – Stealing with violence. Section 38B Criminal Code Act – Identification - Acquitted.

Cases Cited

The State v Laurie Kemuel & Kopol Kepao [2016] SC1640
The State v Paul Kund Rape [1976] PNGLR 96
The State v Jenny Kobana [2005] PNGLR 135; N2813
Beng -v- The State [1977] PNGLR 115
The State-v- Roka Pep (No.2) [1983] PNGLR 19

Counsel:

Mrs Maru, for the State
Mr. Parihau, for the Defendants

23^rd February, 2021

1. REI AJ: A. INTRODUCTION: The four accused persons were arrested on the 19^th day of July 2017 and brought to the Wewak Police Station on allegations of stealing with violence. The names of the accused are Joel Enoch, Pius Michael Jondua, Reymond Taigon and Heldena Reini.

2. They were interviewed by Police Officers on the 19^th July, 2017 and remanded in Custody until bail was imposed.

3. The accused persons were granted bail on the 18^th day of May, 2019 and have since remained on bail.

4. The trial in this matter commenced on the 18^th of February 2021 during which the State called two (2) witness – Moses Napi who is the only eye witness who gave evidence on the events that unfolded on the 18^th of July 2017 and Sgt. Seracus Simun the Police arresting officer.

5. At the close of the State’s case, Mr. Parihau of the Public Solicitor’s Office indicated that he will make a No Case submission.

6. When the Court resumed at 1:30 pm, both Counsels requested for a further adjournment to Friday 19^th February 2021 to make written submissions. This request was granted.

7. Since adjournment was granted, the matter returned on 19^th February 2021 at 9:30 am for submissions.

B. ISSUE

8. The issue is whether there is sufficient evidence before the Court for the matter to proceed further. Alternatively whether the evidence given by the State adequately support all elements of the criminal charge preferred against four (4) accused persons: stealing with actual violence pursuant to Section 38b(1)(2) (a)(b)(c) of the Criminal Code Act, sure that I call upon each one of them to testify – refer Laurie Kemuel &Kopol Kepao – The Independent State of Papua New Guinea [2016] SC1640.

100. SUBMISSIONS
     

9. I have had the opportunity of reading the submissions filed by both Mr Parihau and Mrs Maru. Wherein Mr Parihau submitted there is not enough evidence such that in the light of the reasons by decision in State -v- Paul Kund: Rape [1976] PNGLR 96, the trial should stop and that the Judge exercises his discretion to stop the trial – State -v- Jenny Kobana [2005] PNGLR 135; N2813. Mrs Maru of the State strongly submitted that there is sufficient evidence therefore the accused be called upon to testify.

10. In any criminal case, the prosecution must establish beyond reasonable doubt that the accused was involved in committing the crime as alleged. All elements of the crime as charged must be proven before the accused person is called upon to give evidence in his defence.

11. There must be a proof beyond reasonable doubt of all elements of the criminal charge as laid in the indictment that the accused was involved in committing the crime as alleged and all elements of the criminal offence are satisfactorily proven before the accused person(s) is called upon to testify of his innocence.

4. EVIDENCE OF MOSES NAPI
   

12. From the evidence given by Moses Napi, it appears that he was travelling in a motor vehicle going towards the log pond.

13. On the way to the log pond and at Smain Village, he noticed a blue ten seater motor vehicle driving past going towards Aitape. He identified it as being registered as a (Toyota Land Cruiser) WAF 005.

14. Moments later he noticed that the vehicle blue ten (10) seater was following the vehicle he was travelling in which had changed direction and was driven in the direction of the log pond towards Wewak town. There was a change of direction here.

15. He gave further evidence that the vehicle, blue ten (10) seater, pulled up and stopped the vehicle in which he was travelling.

16. At the command of the occupants of the blue ten (10) seater motor vehicle, the vehicle he was a passenger came to a stop.

17. When his vehicle stopped, the accused persons emerged from the blue ten (10) seater motor vehicle and demanded that they all lie down with their faces towards the ground.

18. They were then searched. As a result the sum of K7,000 (in cash) was removed together with other valuable items including telephones and visas for the Asians who were with Moses Napi. There was no evidence adduced as to who was in possession of the cash. This happened at between 4:30pm and 5:00pm at Smain Village in the presence of the village people who were chased by four suspects, as Moses Napi stated.

19. After the removal of cash and other items of value, they were ordered to report to the Aitape Police Station.

20. Although they reported to the Aitape Police Station nothing happened as no criminal charges were laid on the witness Moses Napi and or his work mates. No further action was taken against either Moses Napi or those who travelled with him..

21. The sum of K7,000 together with certain valuable items removed from the victims were not all returned to them at the Aitape Police Station.

22. No reasons are before the Court as to why this happened except that the victims were held up at Smain village. Only half of K7,000 was recovered later.

23. The matter was reported to the Wewak Police Station where upon Sgt. Seracus Simun was delegated the task to arrest and charge.

5. EVIDENCE OF SERACUS SIMUN
   

24. Snr Sgt Seracus Simun gave evidence that he was tasked to investigate the matter and did investigate the matter.

25. He also gave evidence of an identification parade conducted by him at the Wewak Police Station some three days later.

26. The evidence of identification is that the four (4) accused persons and four (4) other people were paraded at the Wewak Police Station. The witness Moses Napi was taken into identify and did identify the four (4) accused persons.

27. When questions were put to him by the defence whether any officers of the Papua New Guinea Defence Force (“PNGDF”) and Royal Papua New Guinea Constabulary (“RPNGC”) were also included in the identification, Sgt. Seracus Simun responded in the negative as it was the time for the National Elections and all officers of both disciplined forces were engaged.

28. These series of questions were put to the witness because Moses Napi gave evidence that two (2) of the four (4) accused persons were members of the PNGDF and two (2) were the members of RPNGC and were then wearing uniforms for the PNGDF and RPNGC.

6. ASSESSMENT OF EVIDENCE
   

29. Having heard the evidence of Moses Napi, as well as Seracus Simun, is there evidence that the matter proceeds further?

30. The evidence given by Moses Napi, says that four (4) accused got out of their vehicle and searched them after being “ordered” to lie face down resulting in the removal of cash of K7000 together with valuables.

31. This evidence is not clear as to who amongst the four (4) accused persons removed the cash and valuable items, who gave orders for them to lie face down and what type of gun was used. It is however clear that the four (4) accused acted in company in doing what they did.

32. Moses Napi said in his evidence in chief and cross examination that eight (8) people stood in the parade from whom he had to identify the accused persons. It is clear that 4 of these people are the accused persons and four (4) were strangers who were handpicked for the identification parade purpose.

33. During cross-examination of Seracus Simun, Counsel asked if any officers of the PNGDF and PNGRC were included in the identification parade to add variety and quality.

34. Witness Seracus Simun said no such personnel(s) of the discipline forces were involved in the identification parade.

35. The pre-trial statement filed by the defence counsel states that there are general denial and no specific statement is made that the issue of identification will arise.

36. But the statement says that there would be general denials, which will include question of identification.

7. IDENTIFICATION
   

37. In the case of Beng -v- The State [1977] PNGLR 115, the Supreme Court said:

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken, the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence] is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered’.

38. Whilst I appreciate that an identification parade was held on the 19^th of July 2017 for witnesses to identify the accused people, I am thinking that the quality of identification done in this case was poor.

39. The only witness who gave evidence on identification is Moses Napi.

40. The identification was done on 8 people amongst whom no officers of the PNGDF or RPNGC were paraded (for the purposes of identifying the accused persons).

41. This is being said because two of the accused persons involved in this matter are officers of the PNGDF and two are auxiliary members of the RPNGC who wore uniforms.

42. In my opinion it could have been proper for the identification parade to also have included several members of the PNGDF and RPNGC to improve the quality of identification.

43. It appears; and I am aware of what Sgt. Seracus Simun said from the witness box, that he picked from amongst the persons in the station and conducted the identification parade. He stated further that no members of the PNGDF or the PNGRC were included in the identification parade then carried out.

44. This being the case, it is my opinion that the quality of identification evidence is poor see Beng -v- The State [1977] PNGLR 115.

45. But is there other evidence that does supplement this gap?

46. Again Moses Napi gave evidence and said that at the time the crime was committed, the accused persons did not wear masks. He clearly saw them. They were at the scene of the incident and used firearms to scare the village people off Smain Village.

47. He did see the faces of the four (4) accused and said emphatically from the dock that they were the people he saw who held them up at Smain Village.

48. Is this evidence sharp enough to warrant the continuation of trial so that I require the four (4) accused persons to testify?

49. Despite of the fact that a total of more than 5 people were held up at Smain village on the 18^th of July 2017 none was called to corroborrate the evidence of Moses Napi except Moses Napi himself. There were also some “kongkongs” or Asians with Moses Napi who were then allegedly held up but none of them was called to give evidence. Most glaring error is that the firearm allegedly used was not produced in evidence nor was any description of it given.

50. The question remains whether it is safe to say that a case has been made out.

51. As I stated early any criminal offence is a serious offence as such the prosecution has the onus to prove beyond reasonable doubt all elements of the offence, including identification up to the end of the case before a verdict of guilt is returned.

52. Identification is a serious matter as evidence of it links people to crimes committed.

53. If quality of identification is poor, which I think it is in this case, then there has to be an acquittal. But if it is good a conviction be made.

54. In the circumstances of this case I consider identification may not have been properly done at the Police Station. I also consider the evidence given by Moses Napi is not convincing as it was not corroborated despite of a plethora of witnesses.

55. I consider that the case of stealing with actual violence is a serious matter and that all elements be proven beyond reasonable doubt before a verdict of guilt is concluded.

56. The law relating to a No Case Submission is now settled in this jurisdiction – Laurie Kunsel & Kopol Kepoo -v-Independent State of Papua New Guinea [2016]; SC1640:

“The principles applicable to No Case to Answer Submissions are well settled in the jurisdiction. The leading case authority on the subject is The State v Paul Kundi Rape and the principles enunciated in that case were adopted and applied in The State v Roka Pep (No.2). This practice reinforces the presumption of innocence on a person charged with an offence guaranteed by Section 37(4) of the Constitution and an accused’s right to remain silent guaranteed by Section 37(10) of the Constitution. They are generally referred to as the first and second limbs of the principles enunciated by O’Leary J in The State v Paul Kundi Rape at 97 and 98. The two limbs are quite separate and distinct, but there is a discretion in the trial judge when applying the two limbs in appropriate cases. The burden of proof in a criminal case always rests with the prosecution, i.e., it must prove each element of a particular offence beyond reasonable doubt. In other words the overall burden of proof remains with the prosecution from the commencement of a trial to the end. However in a No Case to Answer Submission, after the close of the prosecution case, one does not look to see whether the prosecution has proven its case beyond reasonable doubt as no weighing of evidence is involved at that stage of a criminal trial: The State v Roka Pep (No.2).

“The first limb is that, when there is a submission of no case to answer at the close of the case for the prosecution, the matter is a question of law for the judge as a tribunal of law; and the test is whether the evidence adduced by the prosecution supports the essential elements of the offence charge in the indictment.

“The second limb is that where the tribunal decides that there is a case to answer, it nevertheless has a discretion to stop a case at the close of the prosecution case in appropriate circumstances. This discretion is exercisable in a very clear case where; there is a mere scintilla of evidence; and the evidence is so lacking in weight or reliability that no reasonable tribunal could safely convict on it”.

57. In this case I find that the evidence of Moses Napi is not sufficiently convincing such that the accused persons be required to testify.

58. Although the identification of the accused persons may be somewhat satisfactory, I am of the opinion that a case has not been satisfactorily made out against the accused persons in the light of my above observations.

59. In the circumstances and applying the reasons for judgement in the case of Roka The State -v- Paul Kindi Rape [1976] PNGLR 96, and Laurie Kensel & Kopol Kepoo -v- The Independent State of Papua New Guinea, this case should stop here.

60. Accordingly, I order that the four (4) accused be acquitted and their bail monies refunded forthwith.

________________________________________________________________

Public Prosecutor: Lawyers for The State

Public Solicitor: Lawyers for the Defendants