N10339

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1043   OF 2018

THE STATE

V

ALFRED LUA MANAK

Bulolo/Lae: Polume-Kiele J
2021:	16th, 17th, 18th & 22nd, November 2nd & 7th December
2022: 	1st March, 14th April

CRIMINAL LAW – Verdict- Trial– armed robbery – s 386 (1) (2) (a) (b) (c) - elements of charge of armed robbery – identification evidence – alibi evidence - credibility of witnesses - The State invoked section 7 (1) (a) (b) (c) and s 8 – Criminal Code.
Facts
The accused, Alfred Lua Manak was indicted on 3 November 2021 for armed robbery. On 31 March 2018 between the hours of 2.00 p.m. and 3 .00 p.m. a robbery took place at Gawapu Village, Mumeng District. It was perpetrated by 14 armed men using dangerous and offensive weapons, namely homemade guns and a 303 rifle. The accused, Alfred Lua Manak has made admissions in Questions 10 to 13 of the record of interview to being involved in the armed robbery.  Mr. Gilinde Yateng, a local gold buyer and businessman of Gawapu Village, Mumeng District was held at gun point and was robbed of his money in the sum of Eight Thousand Kina (K8,000.00) and personal property valued at Five Thousand Two Hundred and Forty Kina (K5,240.00). These items have not been recovered. 
During trial, the accused, Alfred Lua Manak in his sworn evidence denied involvement in the armed robbery. He gave evidence that he was at another place. He said that he was at the market place with his wife at the time. His wife Jennifer Alfred gave alibi evidence that the accused, Alfred Lua Manak was with her at all material time from 31st March 2018 at the market. She denied the suggestion that her husband, the accused, Alfred Lua Manak was involved in the armed robbery. She said that the accused, Alfred Lua Manak was with her throughout the day.
Cases Cited:

Papua New Guinean Cases
The State v Mathew Moro (2011) N4906
The State v Asarombo [2010] N4035 
State v Kopio [2011] N4263 
The State v Allan Allam (2009) N3788
State v Nataemo Waun [1977] PNGLR 152
 The State v Allan Allam (2009) N3788) 
The State v Ipai Koivi (2010) N3972
The State v. Francis Natuwohala Laumadava [1994] PNGLR 29
The State v. Gigere Undamu [1990] PNGLR 151
The State v. Simon Ganga [1994] PNGLR 323
 The State v Ongadi Minjipa [1977] PNGLR 293
John Jaminan v The State (No.2) [1983] PNGLR 318 
The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266
The State v Elijah Kasindu (2009) N3847
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
The State v Robert Wer & Others [1988-89] PNGLR 444
 The State v Sei Nakiking Tubol & Others [1994] PNGLR 378
The State v Hanaio [2007] PGNC 172; N4012 
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Jack Mota (CR No. CR No. 1090 OF 2017) Unreported, (2021) 10 June 2021
The State v Elijah Kasindu (2009) N3847

Overseas Cases
Browne v Dunn (1893) 6 R 67 

Counsel
Ms. S. Joseph, for the State
Mr. C Boku, for the Accused

RULING ON VERDICT

14th April, 2022
1.	POLUME-KIELE J: On 3rd November 2021, an indictment was presented by Ms. Matana for the State charging the accused, Alfred Lua Manak with one count of aggravated armed robbery contrary to s 386(1)(2)(a)(b)(c) of the Criminal Code Act.  The State further invoked Sections 7 (1) (a) (b) (c) and Section 8 of the Criminal Code. 

2.	On 8 November 2021, the accused Alfred Lua Manak was arraigned. He pleaded not guilty to one count of armed robbery contrary to section 386(1)(2)(a)(b)(c) of the Criminal Code and a trial ensued. 

3.	At the close of the State's case, the accused through his counsel opted to make a no case submission. The no case to answer submission is mounted on both limbs of the test in The State v Paul Kundi Rape [1976] PNGLR 96 case. 

4.	The no case to answer submission was dismissed on 15 November 2021 and the Court held that the accused, Alfred Lua Manak had a case to answer.

5.	This ruling is on verdict. 

6.	Section 386 (1)(2)(a)(b)(c) states: 
(1) 	A person who commits robbery is guilty of a crime. 
Penalty: Subject to subsection 2, imprisonment for a term not exceeding 14 years.
(2) 	If a person charged with an offence against subsection 1 – 
(a) 	is armed with a dangerous or offensive weapon or instrument;
(b)	 is in company with one or more other persons
(c) 	at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any other person, 
He is liable subject to s 19, to imprisonment for life. 
Robbery is defined in s 384 as follows:
“A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person, or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery. 
Stealing is defined by s 365 as follows:
(2) 	Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of another person anything capable of being stolen, is said to steal that thing.
(3) 	The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act."
7.	The State invoked s 7 and s 8 of the Criminal Code Act. This means that when an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it. 

Division 2. – Parties to Offences.
“7. PRINCIPAL OFFENDERS.
(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: –
(a) every person who actually does the act or makes the omission that constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.
(2) In Subsection (1)(d), the person may be charged with–
(a) committing the offence; or
(b) counselling or procuring its commission.
(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–
(a) guilty of an offence of the same kind; and
(b) liable to the same punishment,
as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.
8. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE.
Where–
(a)	two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.”
The elements of the offence
8.      The elements of the offence of aggravated armed robbery are that:
(i)	The accused;
(ii)	Stole something
(iii)	Property belonging to someone else;
(iv)	Accused was armed with a dangerous weapon;
(v)	Who was in the company of other persons;
(vi)	And had used force to obtain the thing stolen.

Issues

9.    The issues for determination are: Firstly, whether there was an armed robbery on the afternoon of 31 March 2018 at Gawapu Village, Mumeng District and that cash and personal properties were stolen. Secondly whether the accused was identified as a member of the gang that carried out the robbery. 

The State's case 
10.     The State’s case is that on 31 March 2018, sometime between 2.30 p.m. and 3.30 p.m., the accused, Alfred Lua Manak in the company of 13 other men entered the premises of one, Gilinde Yateng, a local gold buyer and businessman. At the time, the accused and his other co-offenders were armed with a homemade gun and a 303 rifle. The accused and his co-offenders held up Gilinde Yateng at gun point and demanded money and gold. They stole cash money in the sum of Eight Thousand Kina (K8,000.00) and personal properties valued at Five Thousand Two Hundred and Forty Kina (K5,240.00). Furthermore, still holding up Gilinde Yateng at gun point, the accused and his co-offenders confronted Gilinde Yateng (victim) and demanded that he guided them out of the area through the mountains to escape which he did under circumstances of aggravation. He was subsequently released. Gilinde Yateng then returned to the village and reported the matter. The other co-offenders are still at large.

Evidence for the State

11.     The State’s case consisted of sworn oral evidence and testimony plus documentary evidence. 

12.       Two (2) State witnesses, the victim Gilinde Yateng and Sergeant Dick Forfin were called by the State. They both gave sworn oral testimonies and were cross-examined on their evidence. Their evidence is collaborated by their respective statements given to police to substantiate the allegations. The State also relied on other documentary evidence such as the Record of Interview dated 3 April 2018. The Record of Interview was also tendered into Court through the witness, Sergeant Dick Forfin. 

13.     The following documents were tendered into evidence through the respective witnesses:

•	Statement of Constable Nick Siwi dated 23rd April 2018. The Statement of the Corroborator to the Record of Interview between the accused Alfred Lua Manak and Sergeant Forfin. The accused Constitutional Rights were administered to him, he was cautioned and allegations were put to him. The accused Alfred admitted that he went together with his accomplices but got muscle cramp and stayed back. There was no threats or inducements, the accused gave his evidence freely and willingly.

•	Statement of Sergeant Dick Forfin dated 5th April 2018. This is the Statement of the Arresting Officer who arrested the accused Alfred Lua Manak and three other co-accused. He arrested the accused Alfred Lua Manak with three of his co-accused and charged them with two counts of armed robbery and one count of wilful murder. The accused Constitutional Rights were administered to him, he was cautioned and allegations were put to him. The accused Alfred admitted that he went together with his accomplices but got muscle cramp and stayed back.  There was no threats or inducements, the accused gave his evidence freely and willingly. This statement was tendered into evidence and marked as Exhibit “1”. 

•	Record of Interview of Alfred Lua Manak dated 3rd of April 2018. Question & Answer 2: The allegations were put to him.  I note that in Question and Answer 4: I note that he was read his Constitutional rights and which was administered to him during the interview. Furthermore, I have read and noted that in Questions and Answers 10 – 19., the accused Alfred Lua Manak made full admissions to Sergeant Dick Forfin in the presence of Police Constable Nick Siwi that he and 14 of his accomplices on the 31st of March 2018 went to Gawapu Village to commit robbery. 

A.	Oral Evidence 

Gilinde Yateng

Mr. Yateng gave evidence that he is a local gold buyer and businessman. He states that between 2. 00 p.m. and 3.00 p.m., on 31 March 2018, 14 men held him up at his house and demanded money and gold. The men were armed with a homemade gun and a 303 rifle. They stole cash money in the sum of Eight Thousand Kina (K8,000.00), personal properties valued at Five Thousand Two Hundred and Forty Kina (K5,240.00). After stealing the cash and properties, they still held him hostage and demanded that he show them the way out of the area through the mountains to escape which he did under circumstances of aggravation. He however was subsequently released and returned to the village and reported the matter. Mr. Yateng also gave evidence that he is unable to identify any of his assailants. They all were wearing face masks at the relevant time. 
Sergeant Dick Forfin
Sergeant Dick Forfin is a police officer and gave evidence, that he has been a policeman of almost 40 years of experience. He confirmed that he made a statement in relation to this matter and so did, Police Constable Nick Siwi. He identified his statement made on 5th April 2018 and that Police Constable Nick Siwi. Sergeant Dick Forfin’s statement dated 5 April 2018 was tendered into evidence and marked as Exhibit “1”.  He also confirmed that he is the Arresting Officer who arrested the accused Alfred Lua Manak and three other co-accused. He arrested the accused Alfred Lua Manak with three of his co-accused and charged them with two counts of armed robbery and one count of wilful murder. He also confirmed that the accused Constitutional Rights were administered to him, he was cautioned and allegations were put to him during the conduct of the Record of Interview on 3 April 2018. In the Record of Interview, the accused Alfred admitted that he went together with his accomplices but got muscle cramp and stayed back.  There was no threats or inducements, the accused gave his evidence freely and willingly. The Record of Interview dated 3 April 2018 was tendered into evidence and marked as Exhibit “2”. 

The following are the proven facts.

14.     Ms Joseph for the State submitted that the following are the proven facts:

(i)	Between 2. 00 p.m. and 3.00 p.m., on 31 March 2018, an armed robbery took place at Gawapu Village, Mumeng District.

(ii)	The robbery involved the taking of cash amount of Eight Thousand Kina (K8,000.00), personal properties valued at Five Thousand Two Hundred and Forty Kina (K5,240.00), the property of the victim, Gilinde Yateng, a local gold buyer and businessman; none of which was recovered by police. Money is a thing capable of being stolen.

(iii)	The robbery was perpetrated by a group of 14 men using dangerous and offensive weapons namely firearms. Three homemade guns and a 303 rifle were used during the robbery.

(iv)	The robbery was perpetrated by a group of 14 men using dangerous and offensive weapons namely firearms., 3 homemade guns and a 303 rifle. The accused, Alfred Lua Manak has admitted in Question and Answer 10 to 19 in the Record of Interview dated 3 April 2018 of his involvement in the armed robbery and being in the company with one or more persons in the commission of the crime; armed robbery contrary to s 386 (1) (2) (a) (b) (c) of the Criminal Code. 

(v)	Personal violence was involved, the victim, Gilinde Yateng was held at gun point, also a man was killed during the course of the robbery.

15.     At this juncture, I must warn myself that the question is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands can the accused be lawfully convicted?  

16.     As it is, the prosecution must show some evidence of the existence of the elements of the offence under Section 386(1)(2)(a)(b)(c) of the Criminal Code.

17.     I now put these tests to the facts presented by the prosecution. Under section 386(1)(2)(a)(b)(c) the following elements must be established by evidence at the close of the State's case or allow its existence to be inferred:

(a)	Armed robbery on 31 March 2018
On 31 March 2018, an armed robbery took place. The details of how this armed robbery was committed have emerged from the sworn oral evidence through the victim of the crime, Gilinde Yateng, a local gold buyer and businessman of Gawapu Village, Mumeng District. His evidence is corroborated by admission made by the accused, Alfred Lua Manak Questions 10 to 19 of the Record of Interview dated 3 April 2018. In addition, the statements of Sergeant Dick Forfin and his corroborator, Police Constable Nick Siwi also substantiated the allegations made to the police. The statements and Record of Interview were tendered into evidence through the evidence of Sergeant Dick Forfin in his sworn oral testimony. They are marked as Exhibits 1 and 2 respectively. Once they are tendered and accepted as evidence by the court they are for all intent and purposes evidence which the party tendering them can rely upon as evidence. A party cannot hark back and argue against their admissibility. Nor can a party argue against relying upon this evidence: (see The State v Mathew Moro (2011) N4906).
The victim, Gilinde Yateng, gave sworn oral evidence that a robbery occurred between the hours of 2.00 p.m. and 3. 00 p.m. at his premises at Gawapu Village, Middle Watut, Mumeng LLG. It occurred on a 31 March 2018. He was held up at gunpoint and cut with a bush knife. His cash of Eight Thousand Kina (K8,000.00) and personal properties valued at Five Thousand Two Hundred and Forty Kina (K5,240.00) were stolen. None of which has been recovered.
The statement of Sergeant Dick Forfin and Record of Interview relied upon by the State clearly show that a robbery occurred between the hours of 2.00 p.m. and 3. 00 p.m. at Gawapu Village, Middle Watut, Mumeng LLG. It occurred on a 31 March 2018.
Admission made by the accused, Alfred Lua Manak recorded in Questions and Answers 10 to 19 of the Record of Interview dated 3 April 2018, corroborates the allegations made to police of an armed robbery carried out between 2.00 p.m. and 3.00 p.m. at Gawapu Village, Middle Watut, Mumeng LLC on 31 March 2018. 
(b)	The robbery must be committed on a thing capable of being stolen;
Mr. Yateng gave evidence of the armed robbery and that the robbery involved the taking of cash amount of the accused and his accomplices held him up at gun point and demanded money and gold. They stole cash money in the sum of Eight Thousand Kina (K8,000.00), personal properties valued at Five Thousand Two Hundred and Forty Kina (K5,240.00). Of this cash and properties, none of the amount was recovered by Police.  Money is a thing is capable of being stolen. 
(c) 	At the time of the robbery the accused is armed with a dangerous or offensive weapon; or
The robbery was perpetrated by a group of 14 men using dangerous and offensive weapons, namely firearms. Home-made guns and a 303 rifle were used during the robbery. Personal violence was also involved where Mr. Yateng was held up at gunpoint, cut with a bush knife and taken hostage as a means of getaway from the scene of the crime.
•	Is in company with one or more other persons;

As alluded to above, the robbery was perpetrated by a group of 14 men using dangerous and offensive weapons, namely firearms, three homemade guns and a 303 rifle. The accused, Alfred Lua Manak, has admitted to being in company with one or more other persons in the commission of the crime in Questions and Answers 10 to 16. This evidence is corroborated by the evidence of Mr. Yateng who gave evidence of 13 men who held him up and robbed him of his cash of Eight Thousand Kina (K8,000.00) and personal properties valued at Five Thousand Two Hundred and Forty Kina (K5,240.00). The total value being K13, 240.00, which has not been recovered.
(e) 	At the time of robbery, the person wounds or uses other personal violence
This element of the offence is confirmed in the evidence of Mr. Yateng who gave evidence that he was held up at gun point and cut with a bush knife. He further gave evidence that a man was killed during the course of the armed robbery.  Admissions made by the accused in Questions and Answers 10 and 16 of the Record of Interview dated 3 April 2018, corroborates the allegations. These are reproduced below: 
“Question 10: Can you tell me how you sustain injuries to your leg and hand?
Answer: Because of this robbery, the locals wounded me.
Question 11: Do you agree that you are referring to the robberies at Gawapu Village on 31 March 2018?
Answer: Yes
Question 12: How many of you went and committed the robberies?
Answer: Fourteen (14)
Question 13: Do you agree that: you went and robbed the 1st man and got his cash money and store goods, then you forced him and went with him to the 2nd store when the owner was away and stole his cash money and store goods also? 
Answer: We went together to commit robbery but I got muscle cramps and stayed back on the mountain top, they went and raided the two stores and came back to me.
….
….
Question 16: Do you agree that you were armed with guns when you went and committed the robberies?
Answer: 	Yes, three (3) homemade guns and 1 303 rifle…
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… “
(f)	Identification
The grounds raised by the defence that the accused person, Alfred Lua Manak could not be positively identified by the State witnesses, as the persons allegedly responsible for the armed robbery is conceded by the State and I address this as follows: 
•	Firstly, the State witness, Gilinde Yateng gave evidence that the alleged offence was committed in conditions where all the armed men wore face masks and therefore, he was not in a position to identify any of them. I find his evidence truthful and cogent. His evidence is not so dubious or tainted that it lacks weight or cannot be relied upon.This truthfulness does not render the whole prosecution evidence intrinsically weak and totally unreliable and therefore would be totally unsafe to rely upon it to safely convict the accused persons. I reject this argument: The State –v- Gigere Udamu [1990] PNGLR 151
•	Secondly, the law on visual identification of someone is adequately laid down in The State –v- John Beng [1976] PNGLR 471. The head note of that case says the following in a case on a trial of an accused person who was charged with unlawfully wounding a young woman, the identification of the accused person by the young woman was the only real matter in issue after the accused denied criminal responsibility.  The court held that; (from the head note.)
“(1) 	where evidence of identification is relevant, the court should be mindful of the inherent dangers.  There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the court.
(2)	where the identification relied upon is that of a single witness, it is proper to be mindful that the identification “was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of Justice”, and the court must be satisfied that the witness was not only honest but also accurate in the evidence given.  Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed his judgment as to identification.”
On appeal to the Supreme Court on the issue of identification, the Supreme Court dismissed the appeal.  In dismissing the appeal, the Supreme Court said this:
“It has long been recognized that there are dangers inherent in eye witness identification evidence.  The court was referred to a number of authorities, the latest of them being a decision of the House of Lords in R -v- Raymond Turnbull (1976) 63 Cr App R 132.  For that case guidelines were laid down as to the manner in which identification evidence should be treated.  The following points (as set out in the head-note to the report) were made:
“Whenever the case against the accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial Judge should warn the Jury of the special need for caution before convicting in reliance on the correctness of the identification.  He should make some reference to the possibility, that a mistaken witness could be a convincing one and that a number of such witnesses could be mistaken.  Provided such a warning given, no particulars, form, of words need to be used.  Further, the trial judge should direct the Jury to examine closely the circumstances in which the identification by each witness came to be made.
Recognition maybe more reliable, than identification of a stranger; but even when the witness is purporting to recognize some-one whom he knows, the Jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.  All these matters go to the quality of the identification evidence.  When the quality is good, the Jury can be safely left to assess the value of the identifying evidence even though there is no evidence to support.
Provided always however, that an adequate warning has been given about the special need for caution.  When the quality of the identifying evidence is poor i.e., a fleeting glance or a long observation made in difficult conditions – the Judge should then withdraw the case from the Jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.” John Beng –v- The State [1977] PNGLR 115”
18.     In this case, this court is very mindful that the victim, Gilinde Yateng is the only witness and any identification of his assailants was not possible. In his evidence, the victim said that they all wore face masks and he is unable to identify the accused or any of his 13 other accomplices. Being mindful of this, I will therefore warn myself of the possibility of mistaken identity inherent on accepting his evidence and will treat his evidence very carefully. At the same time, I also refer to an earlier decision in the case of The State v Jack Mota, CR No. 1090 of 2017 (Unreported judgment) 3 December 2021) where I reiterated at paragraph 22; the principle established in The State v Asarombo [2010] N4035 “… 

“22.	…. In an armed robbery case, where the State’s case depends on circumstantial evidence, the prosecution is not required to establish precisely what acts, an accused has done. It is sufficient to establish that the accused was involved in the robbery in some way.” The State v Asarombo [2010] N4035 applied. 

19.     I propose to address the identification issue raised by the defence under the different criteria proposed in the John Beng case to assess his credibility and cogency as follows: 
(1)	Was the witness honest and accurate in his evidence
I consider the victim, Gilinde Yateng quite frank and honest in describing his ordeal.  His evidence was not discredited nor his demeanour discredited during cross-examination. I find that the victim has given a truthful and cogent account of his ordeal.  
(2)  	Opportunities this Court can infer to form a judgment as to the identity of the accused
The victim has confirmed that he cannot positively give the identity of the accused. This then leads this Court to look at other evidence adduced during trial to arrive at an inference as to the identification of the accused.
(3) 	Other evidence accused during trial
Other evidence adduced during trial are the statements of Sergeant Dick Forfin dated 5 April 2018, Police Constable Nick Siwi dated 23 April 2018, and the Record of Interview dated 3 April 2018. 
(i)	Statement of Police Constable Nick Siwi dated 23 April 2018
Police Constable Nick Siwi in his statement dated 23 April 2018, he stated recalling being invited by Sergeant Dick Forfin on 3 April 2018, to be his corroborator during a conduct of interview with four (4) men who were accused of two armed robberies and the killing of a man that occurred on Saturday 31 March at Gawapu Village, Mumeng LLG. The accused persons were Alfred Lua Manak, from 8.48 a.m. to 11.00 a.m., Aron Sou from 11.14 a.m. to 12 noon., Robert Theo from 1.35 a.m. to 2.00 p.m. and Soni Yauri from 2.30 p.m. to 3.16 p.m. Constable Nick Siwi stated that prior to the interview, they (police officers) introduced themselves to the accused persons and that all four accused were cautioned and told of read and administered their Constitutional Rights and that they were going to be asked questions regarding the allegations raised against them. During the interview, the first three (3) accused admitted to taking part in the robberies and killing of a man. The fourth accused person denied taking part, however, all four were charged with two counts each of armed robbery and one count each for murder. When asked at the end of the interview if any of the accused, had anything to say, Alfred Lua Manak mentioned that he went together with them but did not go to Gawapu because he got muscle cramp and stayed back and that the others went and raided the stores and came back but they did not share with him what they got. He also mentioned that he is married with four children to look after and wants the Court to consider this. On the other hand, Aron Sou remained silent in answer to his charge, Robert Theo did not say anything and Soni Yauri did mention that he was escaping from custody and travelling from Lae to Bulolo but when he heard that Police were doing a road block, he got off at Gurakor and was walking along the Wau/Bulolo Main Highway when he was caught by police at Zenang farm. At the conclusion of the interview, the accused were asked if they wish to sign the record of interview, they all refused to sign so only Sergeant Dick Forfin and him signed the record of interview. Constable Siwi also deposed that no threats, promises or inducement were made, the accused answered all questions freely and willingly. 
(ii)	Statement of Sergeant Dick Forfin dated 5 April 2018
In his statement, Sergeant Dick Forfin dated 5 April 2018, Sergeant Dick Forfin stated that he recalled that on Sunday 1 April 2018, he and other policemen and policewomen left Zenag and travelled to Gawapu Village to attend to a reported armed robberies and killing which took place on Saturday 31 March 2018. Upon arrival, he attended at the scene of the robberies at two different locations and scene of murder that also took place at the same time. Whilst at Gawapu, he received a phone call that Villagers, at Pamalabus have surrounded the suspects who were believed to be the ones who committed the crimes and wanted their assistance. The police then returned to Pamalabus Villagers and it was there that the Villagers brought Alfred Lua Manak to the police. Alfred Lua Manak was wounded by the Villagers and was bleeding heavily so I took him to the Health Centre and he got treated and later took him to the Police Station where he was detained. Later, three other suspects who were caught during the period were brought into custody and detained at the Zenang Police Station. Later when collecting information from the victims, a record of interview was conducted on 3 April 2018 with all four suspects. The suspect persons were Alfred Lua Manak, from 8.48 a.m. to 11.00 a.m., Aron Sou from 11.14 a.m. to 12 noon., Robert Theo from 1.35 a.m. to 2.00 p.m. and Soni Yauri from 2.30 p.m. to 3.16 p.m. The accused persons and that all four accused were cautioned and told of and read and administered their Constitutional Rights and that they were going to be asked questions regarding the allegations raised against them. During the interview, all except Soni Yauri denied the charges of taking part in the robberies and killing of a man. At the conclusion of the interview, the accused were asked if they wish to sign the record of interview, they all refused to sign so only Constable Nick Siwi and him signed the record of interview. Sergeant Forfin also stated that no threats, promises or inducement were made, the accused answered all questions freely and willingly.

(i)	Record of Interview dated 3 April 2018.
Sergeant Forfin also gave evidence that the accused, Alfred Lua Manak was read his Constitutional rights which was administered to him during the interview (Question and Answer 4). In regards to the issue as the identification of the accused, Alfred Lua Manak, In the Record of Interview which was conducted by Sergeant Dick Forfin between him and the accused, Alfred Lua Manak and corroborated by Constable Nick Siwi, the accused Alfred Lua Manak voluntarily made admissions in Questions and Answers 10 to 18 of the record of interview of his involvement and participation in the alleged offending. The Record of Interview was tendered into evidence (Exhibit “2”) and the statement of the police officers, Sergeant Dick Forfin and Constable Nick Siwi who were involved in the laying of the charges is (Exhibit “1”). The admissions contained in Questions and Answers 10 – 18., which I have reproduced below disclosed that the accused Alfred Lua Manak made full admissions to Sergeant Dick Forfin in the presence of Police Constable Nick Siwi that he and 14 of his accomplices on the 31st of March 2018 went to Gawapu Village to commit robbery. 
Question 10:	Can you tell me how you sustain injuries to your leg and hand?
Answer:	Because of this robbery, the locals wounded me.
Question 11: 	Do you agree that you are referring to the robberies at Gawapu Village on 31 March 2018?
Answer:	Yes
Question 12:	How many of you went and committed the robberies?
Answer:	Fourteen (14)
Question 13:	Do you agree that: you went and robbed the 1st man and got his cash money and store goods, then you forced him and went with him to the 2nd store when the owner was away and stole his cash money and store goods also? 
Answer: 	We went together to commit robbery but I got muscle cramps and stayed back on the mountain top, they went and raided the two stores and came back to me.
….
….
Question 16: 	Do you agree that you were armed with guns when you went and committed the robberies?
Answer: 	Yes, three (3) homemade guns and 1 303 rifle…
….
… “
20.    Here, admissions are made by the accused, Alfred Lua Manak, of his involvement and participation in the armed robbery at Gawapu Village, Mumeng LLG. He did admit to being part of the group of 14 armed men who had planned to commit robbery at Gawapu Village. However, he was incapacitated by muscle cramps and remained at the mountain top. He did not accompany the group that went down to the Gawapu Village and committed the actual offending.

21.     I accept that the statements of the police officers, Sergeant Dick Forfin and Constable Nick Siwi do not confirm any identification parade, However, an inference can be drawn from admissions made by the accused, Alfred Lua Manak in the Record of Interview, dated 3 April 2018 of his involvement in the armed robbery, which are relevant to the issue of identification. 

22.     Consequently, I am satisfied that the accused by his own admissions has identified and confirmed that he himself was involved in the planning and execution of the armed robbery, which was carried out at Gawapu, Mumeng District. Hence, here the accused has identified himself as the actual perpetrator and perpetrator by association under the principles of Sections 7 and 8 of the Criminal Code as established in the case of State v Kopio [2011] N42 63 where the Court drew the distinction between the actual perpetrator and perpetrator by association under the principle of principal offender under Section 7 of the Criminal Code infer that the accused identified himself as actual perpetrator and perpetrator by association under the principles of s 7 and 8 of the Criminal Code. Further and in addition, the State has invoked s 7 (1) (a) (b) and Section 8 of the Criminal Code Act. The accused, Alfred Lua Manak is caught by these provisions of the said Criminal Code Act. 
(3) 	Position of the parties when the identification was made?
In the Record of Interview, the accused, Alfred Lua Manak by his own admission (Question and Answer 10 to 18), did admit that he was part of the plan to commit the offence on that date in Gawapu village, they were armed with 3 homemade guns and a 303 rifle. He further gave evidence of the names of his accomplices to the police. He also gave evidence of the group being ambushed by the villagers and he was apprehended by the Villagers who then proceeded to assault him and cut him with bush knives all over his body. He was subsequently handed over to the police. I understand that he was taken to a health care for medical treatment. I consider that the accused’s own admissions in the record of interview Questions and Answers 10 to 19 is sufficient to address the issue of identification. 
23.    So, from the evidence adduced by the State, I accept that the accused, Alfred Lua Manak by his own admission voluntarily admitted to being part of the plan with the 13 others to commit the offence of armed robbery on that 31 march 2018 in Gawapu Village and that they were armed with 3 homemade guns and a 303 rifle. On the way to the place of the alleged offence, he got muscle cramps and stayed back up at the mountains whilst the others went to the village and robbed 2 stores and they returned to him in the mountains. He also identified three of his accomplices by name to the police. In addition, he gave evidence of the group being ambushed and apprehended by the villagers who then proceeded to assault and cut him with bush knives all over his body and subsequently handed over to the police. He was later taken to the Health Centre for treatment, such evidence is collaborated by the evidence of Sergeant Dick Forfin who testified that he did attend to the accused who was badly wounded by the villagers and therefore he took him to the Health Centre to get medical attention.
Consequently, I am of the view that the accused, Alfred Lua Manak by his own admission admitted to his involvement and participation to the alleged offending and I adopt and apply the principle established in the case of State v Kopio [2011] N4263 where the Court drew the distinction between the actual perpetrator and perpetrator by association under the principle of principal offender under Section 7 of the Criminal Code infer that the accused identified himself as actual perpetrator and perpetrator by association under the principles of s 7 and 8 of the Criminal Code. This present case is distinguished from the case of The State v Allan Allam (2009) N3788, a case of wilful damage to property where the accused was charged as an actual perpetrator but the case was dismissed because the State did not invoke s 7 and 8 of the Criminal Code Act. For purposes of clarity, in The State v Allan Allam (supra), his Honour Makail, J, said:
"I consider the third point critical in this case, because it is unclear from the allegations of fact presented by the State, which the Court adopted for purposes of arraignment of the accused where the State said; "The State further alleged that the accused led the group and they wilfully and unlawfully destroyed the properties." Has the State indicted the accused as the actual perpetrator of the offence although he led a group of people to destroy and damage the properties of Mr Paul Mai or has it indicted him as a principal offender by virtue of section 7 of the Criminal Code? (Underlining is mine).
In my view, this question is critical because the State cannot hold the accused criminally liable for the actions of his clansmen and women or the people who went with him to the premises of Mr Paul Mai that day if the State has not alleged that the accused is a principal offender by virtue of section 7 of the Criminal Code. This is because in law, the State is required to inform the Court and of course the accused that it would rely upon the principle of principal offender under section 7 of the Criminal Code. It has not done so in this case. In other words, the State has indicted the accused as the actual perpetrator of the offence rather than an aider and abettor under section 7 of the Criminal Code. 
Hence whilst there is evidence establishing that he led his clansmen and women to the premises of Mr Paul Mai where his clansmen and women destroyed or damaged various properties on the premises, the Court cannot hold him liable for the actions of his clansmen and women that day simply because the State had not alleged that he aided and abated the commission of the offence by virtue of section 7 of the Criminal Code. This is a fatal error or omission on the part of the State of which neither counsel had drawn my attention to. It is fatal to the State's case because as the State had not relied upon section 7 of the Criminal Code, I cannot hold the accused criminally liable for the actions of his clansmen and women on that day."
24.    Applying the principles established above to this present case, I accept that the State has invoked s 7 of the Criminal Code, and further relied under Section 8 of the Criminal Code Act. Here the accused, Alfred Lua Manak is caught by these provisions. He has been informed of the charge of armed robbery in concert with the 13 other perpetrator of the offence and also as an aider and abettor under s 7 and s 8 of the Criminal Code. Alfred Lua Manak aided and abated the commission of the offence of aggravated armed robbery under s 7 and 8 of the Criminal Code Act. I find that the accused, Alfred Lua Manak is an accomplice (see State v Nataemo Waun (1977) PNGLR 152) and perpetrator by association under the principle of principal offender (State v Allan Allam (2009) N3788) under s 7 of the Criminal Code Act to the robbery that was committed on Saturday, 31 March 2018 at Gawapu Village, Mumeng District.

(g)	Putting the defence case to the State’s witnesses in cross-examination

25.     It is also settled law that a party’s case must in fairness be put to the other side’s witnesses in cross-examination. A failure to do so amounts to a conclusion that any evidence introduced which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). For examples of authorities on this see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323.”

26.     Issues raised by the Defence are addressed in this way: Whilst I note the Defence submits that the State should have called oral evidence to substantiate and corroborate what is contained in the Statements before the State can rely on those Statements as evidence in court. Be that as it may, this court finds that there is no rule of law which says that the State can only prove its case by hard credible evidence or direct evidence or oral evidence only. Indeed, the court finds that it is open to the State in a criminal case to prove its case by either direct evidence, or oral evidence or even circumstantial evidence: The State v Ipai Koivi (2010) N3972). 
THE DEFENCE CASE
•	Alfred Lua Manak (Examination in chief)

27.     The accused presented an alibi. In examination in chief, the accused gave sworn evidence that on Sunday 1st April 2018, after Church, his wife sent him to buy betelnut at Mumeng, that was around 3.00 p.m., he arrived at Mumeng around 4.00 p.m. himself and John Lim were standing by the roadside waiting for the betel nut sellers to arrive. Whilst standing there, the local villagers attacked him and assaulted him. He also gave evidence that the admissions in the Record of Interview are not true because the police lied. Because the story is not true, he did not sign on the record of interview.  He also gave evidence that on 2 April 2018, he was taken to Buimo. He does not know about the record of interview conducted at Mumeng Police Station.

28.     In cross-examination, the accused denied that he was in Court when the Arresting Officer, Sergeant Dick Forfin gave sworn oral evidence during the conduct of the State’s case in Court. He also denied being assaulted by villagers in Palambas, but admitted that he was assaulted by villagers from Mumeng and taken to Zenag Police Station (I note that Zenag Police Station is the same as the Mumeng Police Station) and later taken to Lae by the Sector Response Unit (SRU). The accused completely distances himself from the admissions contained in the record of interview and denied them all. He also denied that Sergeant Dick Forfin did in fact conduct a record of interview or charged him with the offence. 

Alibi witness: Jennifer Alfred

29.     The alibi witness, Jennifer Alfred (wife of accused) gave oral sworn evidence and was cross-examined on her evidence. In her testimony, she states that she has been married to the accused for 23 years and they have 4 children. They all live in Baillis, Bulolo. She sells betel nut to sustain the family. She also gave evidence that her husband, the accused was a farmer prior to his incarceration. In her evidence, she states that on Sunday, 1 April 2018, her husband was with her and they went to church. After church, she sent her husband and one other, John Lim to go to Mumeng to buy betelnut. However, at 6.00 p.m. John Lim has returned to Bulolo and told them that they cut Alfred. Later the next day, on Monday, a driver from one of the Hides PMV trucks told her that Alfred was in Zenag Police Station and if they want to see him, they should hurry to the Zenag Police Station.

30.     Upon cross-examination, she confirmed that she has been married for 23 years. When put to her whether she knew that it was an offence to lie in Court and that she could be prosecuted, she replied, “No” at least three times.  At this juncture, it was put to her that “ignorance of law is no excuse”, s 23 of the Criminal Code. In any event, when put to her that her husband was involved in the armed robbery, she maintained that he was with her at all material times from Saturday 31st March 2018 and that he was with her throughout the day. However, on Sunday, she sent him to Mumeng to buy betel nut. On Monday, she was told that her husband was in police custody at Mumeng Police Station. 

Submission from the State

31.      Ms Joseph for the State submits that all the required elements of the charge of aggravated armed robbery, s 386 (1) (2) (a) (b) (c) have been satisfied through the oral and documentary evidence. Further admissions made by the accused, Alfred Lua Manak voluntarily made in the Record of Interview dated 3rd April 2018 identifies him as an actual perpetrator and accomplice pursuant to s 7 and 8 of the Criminal Code. Furthermore, the evidence of the accused Alfred Lua Manak and his wife Jennifer Alfred raised in the alibi evidence are obviously completely dubious, unsatisfactory and cannot be believed.  It is also settled law that a party’s case must in fairness (s 37 (3) of the Constitution be put to the other side’s witnesses in cross-examination. Failure to do so amounts to a conclusion that any evidence introduced that has not been put to the prosecution., as one of invention and lacks credibility. It is unreliable. The rule in Browne v Dunn (1893) 6 R 67 applies. see also The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151; The State v. Simon Ganga [1994] PNGLR 323. It is right and proper that the witness be challenged by cross-examination while in the witness box and it be made plain that his or her evidence is not accepted: The State v Ongadi Minjipa [1977] PNGLR 293. If what the accused and his alibi witness say is correct, such an assertion has not been placed on record in the Record of Interview or during the committal hearings or at the earliest opportunity or even put to Sergeant Dick Forfin whilst he was still in the witness box. This was not done, Consequently, where a party fails to do that, his or her subsequent claim losses credibility and is therefore not reliable. Furthermore, the accused contradicted his own evidence in the record of interview and thus, I reject his evidence. It is one of recent invention and lacks credibility. It is unreliable and I give it no weight.

32.     Further, the law in respect of alibi evidence is clear. When accused fails to put in cross-examination and or gives belated notice of an alibi and calls evidence on that, such evidence should be seen as recent inventions and as unreliable: see Browne v Dunn (1893) 6 ER 67. This is clearly outlined in the case of John Jaminan v The State (No.2) [1983] PNGLR 318 (at pp332-333) per Bredmeyer J: he stated:

“Firstly, the alibi was never put to the key State witnesses particularly the prosecutrix and Maria who gave evidence of being together with the accused in the hotel lounge and in room 2 in the early part of the evening, nor to the prosecutrix that she did not have sex with the accused, that she was mistaken as to the identity of the man who had sex with her or that she invented the encounter. The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasised in Papua New Guinea: see The State v Saka Varimo [1978] PNGLR 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused is reduced…”

33.     In respect of the alibi evidence of the wife (Jennifer Alfred) of the accused, firstly, I say that the alibi was never put to the State witness, Sergeant Dick Forfin who gave evidence of conducting a record of interview with the accused, Alfred Lua Manak on 3 April 2018. If the accused was with her all throughout the day on 31 March 2018, this information was not made known during the record of interview conducted on 3 April 2018. Similarly, if there are allegations of Sergeant Forfin not conducting an interview on 3 April 2018, this was also not put to the witness. 

34.    In these circumstances, I find that the story you told the Court are merely an attempt at trying to avoid your criminal liability.  In the process, you have made recent inventions and said incredible things.  At the same time, you support the State’s case.  This is especially so, in terms of your identification, acting in concert with 13 other co-offenders who had planned to go and commit robbery at Gawapu Village, I therefore, find your account incredible and therefore unreliable.   

35.     It is trite law that, common sense and logic plays a major role in determining whether a witness and therefore his evidence is credible. In The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266: The Court stated: 
“Logic and common sense do play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty.  In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common-sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97 SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.” 
Submission for the Defence

36.     Mr Boku of Counsel takes no issue as to there being an armed robbery which took place at Gawapu Village, Mumeng District.  He submitted that the evidence of the State relating to identification is purely circumstantial and therefore unreliable. The victim was not in a position to provide a positive identification of the accused, Alfred Lua Manak. Further, no identification parade was conducted. In addition, the police did not carry out an investigation and gather information from the villagers relating to the armed robbery. The defence argument here is really attacking the processes undertaken by the police in their investigation of the alleged crime. It does not substantially attack the credibility of the evidence or the witnesses.

37.     With regard to the issue of identification, there is concession that the victim is unable to identify any of the 14 perpetrators of the armed robbery. In this situation, I will caution myself as to the danger inherent in identification and thus will adopt and apply the guidelines or factors which the Court took into consideration in the case of The State v Elijah Kasindu (2009) N3847, where his Honour Cannings highlighted four issues to take into consideration. These are: 

(i)	What is the quality of the identification evidence?

(ii)	What is the quality of the alibi evidence?

(iii)	What is the result of weighing the alibi evidence against the identification evidence?

(iv)	Has the State proven the elements of the offence beyond reasonable doubt?
What is the quality of the identification evidence?

38.     In considering the competing submissions of Counsels, it is necessary to consider the principles on identification evidence in the established case 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 summarised the inherent dangers of relying on the correctness of identification to support a conviction which I must in this stage, warn myself of as the tribunal of fact.  

39.     In this case the issue for determination is not the the quality of the identification evidence because there is no identification. Hence, it cannot be argued that the quality of the evidence is poor and therefore an acquittal should be entered. 

40.     As submitted by the State, there is other evidence which the State relies upon to support the correctness of the identification. That evidence is contained in the admissions made in Question and Answer 10 and 16 of the Record of Interview dated 3 April 2018, Hence, I caution myself that 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, here, the accused is referring to himself. I accept that there are no discrepancies in the identification evidence and I can consider his admissions made in the record of interview and assess that they are acceptable and reliable.

41.     Given the above factor, I find as follows: 

(1)	The 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.

(2)	I accept Gilinde Yateng’s evidence that he could not identify anyone. All the armed men wore face masks. All he could remember is that they had held him at gunpoint, cut him with a bush knife, threatened him and stole his cash of K8,000.00 and other properties worth over K5,000.00. The armed men also shot a man and he died. The armed men also took him hostage so that he could show them the way out through the mountains to get away from the area. He was subsequently released. 

(3)	There is clear identification of the accused, Alfred Lua Manak in the armed robbery.  In the Record of Interview dated 3 April 2018, the accused, Alfred Lua Manak, did admit in Questions 10 to 16 of the record of interview to being involved and participating in the planning and carrying out of the armed robbery on 31 March 2018. The admissions made in Question and Answer 10 to 16 of the Record of Interview dated 3 April 2018 places the accused within the principles of s 7 and 8 of the Criminal Code. This evidence puts the accused in the vicinity of the crime scene, immediately before and after the armed robbery and his admission evidence corroborates the identification evidence.

42.     In light of the above, I conclude that the admissions freely made in Questions and Answers 10 to 16 of the record of interview dated 3 April 2018, made by the accused, Alfred Lua Manak to being involved and participating in the planning and carrying out of the armed robbery on 31 March 2018, puts the accused in the vicinity of the crime scene, immediately before and after the armed robbery and his admission evidence corroborates the identification evidence and within the principles of s 7 and 8 of the Criminal Code. This identification evidence is honest, accurate and reliable. 
What is the qquality of the alibi evidence?
43.     Mr Boku submitted that the accused could not have been involved in the robbery as he gave sworn evidence that he was at home with his wife, selling betelnut all day on Saturday and then on Sunday went to Church. After church, he was sent by his wife to go to Mumeng to buy betelnut. Whilst at Mumeng, he gave evidence that he was attacked for nothing at all by villagers and he sustained injuries to his person. He denied involvement in the alleged armed robbery. He also denied having admitted to the armed robbery and that these admissions were all lies. I note that these allegations were not put to the State witnesses, more particularly Sergeant Dick Forfin whilst at the witness box.

44.      Further and in addition, Mr, Boku submitted that the alibi evidence of his wife Jennifer Alfred also provides further corroboration of accused, Alfred Lua Manak of being at home with her and selling betelnut at the market all day Saturday, 30 March 2018 and then going to church on Sunday, 1st of April 2018.  However, in the afternoon of Sunday, 1 April 2018, Jennifer Alfred says that she sent her husband, Alfred Lua Manak to go to Mumeng to buy betelnut. Later in her evidence she said that at around 6 pm, she was told by John that her husband was attacked at Mumeng on Sunday, 1 April 2018 and was being held at the Mumeng Police Station. However, on Monday, 2nd April 2018, she was later told that her husband, the accused was already taken to Lae Police Station.

45.     Given this evidence and considering the competing submission of the State, I again will have also considered the principles on alibi evidence in the case of John Jaminan v The State (No 2) [1983] PNGLR 318 and caution 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 practice, 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. As to how strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If the State’s evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the trial judge as to the guilt of the accused. This is 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. Because the court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. 

46.     On the other hand, an alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the State’s evidence. Therefore, 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. Consequently, 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, e.g., 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.

47.     In considering all of the above matters, I find that: 

(i)	The notice of alibi was provided to the State at a very late stage of the trial, in this case, it was filed on 26 July 2021. It was not revealed on any earlier occasion prior to trial, that is, since the beginning of the police investigation, in a record of interview or in committal proceedings. Order 4, Rule 4 of the Criminal Practice Rules, provides that leave must be sought to adduce evidence of the alibi in a late stage of trial. 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.

(ii)	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.

(iii)	The alibi was entirely uncorroborated. If only someone had given evidence that the accused and his alibi were at the marketplace selling their betelnuts and other goods.  But there was nothing. An accused who gives an alibi but then provides no back-up evidence and gives no explanation for being there 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.

48.     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.
What is the result of weighing the alibi evidence against the identification evidence?
49.    It is also trite law that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination.  This is in effect what is meant by a “fair hearing in s. 37 (3) of the Constitution, which is in turn in my view, a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL).  Where a party fails to do that, his or her subsequent claim losses credibility and is therefore not reliable.”

50.     Having assessed the two bodies of evidence, I am of the view that the admission and false alibi are 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.
Has the state proven the elements of the offence beyond reasonable doubt?
51.     The State has proven beyond reasonable doubt that the accused, Alfred Lua Manak was a member of the gang that held up Mr Gilinde Yateng at his home and store at Gawapu Village, Mumeng District on 31 March 2018, they stole a sum of Eight Thousand Kina (K8,000.00) and personal property valued at Five Thousand Two Hundred and Forty Kina (K5,240.00). The accused Alfred Lua Manak was an active participant in the robbery. In The State v Hanaio [2007] PGNC 172; N4012 (24 October 2007), the court per Cannings J, restated the offence of robbery, created by Criminal Code, Section 386(1), consists of four elements:
·	stealing something; and
·	using or threatening to use actual violence to any person or property; and
·	in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen; and
·	at, immediately before or immediately after, the time of stealing it.

52.     The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber:
·	is armed; or
·	is in company with at least one other person; or
·	wounds or uses personal violence.

53.     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. I am satisfied that all the elements of the offence have been established by the State.
Conclusion

54.     On the strength of the evidence as it stands, I find that the State has established all the elements of the offence a prima facie case and this court has arrived at the following conclusions:

(a)	The State evidence as it stands is sufficient to establish all the requisite elements of the offences charged. 

(b)	The accused, Alfred Lua Manak by his own admission has clearly admitted acting together in concert with 14 other accomplices to perpetrate in common their criminal purpose of committing the offence of armed robbery and with aggravation of personal violence upon Mr. Gilinde Yateng of Gawapu Village, Middle Watut, Mumeng LLG.

55.      The witness, Gilinde Yateng was not able to identify the accused nor recall the face of any of the armed robbers. They all were wearing face masks. He was not able to identify any of them. Given these factors, I have taken into consideration the inherent dangers of relying on the correctness of identification to support a conviction and cautioned myself, as the tribunal of fact accordingly, I am satisfied, however, having regard to the principles set out in the case of John Beng v The State [1977] PNGLR 115 to access the credibility and cogency of the evidence as follows:

(ii)	the key State witness was quite frank and honest in describing his ordeal. His evidence is not discredited, nor his demeanour discredited during cross-examination.

(iii)	The victim was truthful in his recollection of the ordeal. He gave evidence that he was held at gun point, cut with a bush and that cash and personal properties were stolen from him. He honestly informed the Court that he could not identify any one of the robbers that day. In such a situation, this then raises the issue of whether the Court can look at other evidence adduced during trial to arrive at an inference as to the identification of the accused?  To do this, I have taken the liberty to look at the evidence of Sergeant Dick Forfin (more so his statement dated 5 April 2018 and that of Constable Nick Siwi dated 23rd April 2018 as well as the Record of Interview dated 3 April 2018 to make an inference as to identity. Whilst I do note that the statements do not confirm any identification parade (which I must point out cannot be practically conducted because the victim has already stated that he cannot identify any of the robbers). Other evidence which infers the identification of the accused, Alfred Lua Manak is disclosed in admissions contained in Questions 10 to 16 which the accused, Alfred Lua Manak voluntarily made in course of the conduct of the record of interview of his involvement and participation in the alleged offending. Having made this admission, I am satisfied that the evidence of the accused, Alfred Lua Manak put himself in the vicinity of the crime scene, before and after the incident. Further, the accused, Alfred Lua Manak was by virtue of s 7 (1) (a) (b) (c) and s 8 of the Criminal Code, an accomplice (“a person who helps others to commit a crime or to do something wrong”) and principal offender (any person who, either as a principal or as an accessory has been associated with another person in the commission of an offence”) to the offence of aggravated armed robbery. accomplice (see State v Basse (2016) N6322).

(iv)	As to the alibi evidence, the court is 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:

o	The accused was an unimpressive witness as his demeanour was extremely poor and he gave vague and inconsistent evidence.

o	the alibi witness (wife) was an unimpressive witness as her demeanour was poor and she gave vague and inconsistent evidence;

o	the alibi was uncorroborated by independent witnesses

56.    In weighing the identification and alibi evidence, I find that the admission and false alibi evidence was sufficient to sustain a conviction as the alibi evidence being so poor, it corroborates the State’s case that the accused was in fact away from home and was not at Mumeng buying betelnuts (buai) and one of the criminals who committed the robbery. 

57.    The State has proven beyond reasonable doubt that the accused is guilty of aggravated robbery under Sections 386(1) (2)(a) (b) (c) of the Criminal Code.
Verdict

58.     I return a verdict of guilty of aggravated robbery under Sections 386(1) and (2)(a) and (b) of the Criminal Code against Alfred Lua Manak as charged and convict him accordingly. 
Verdict accordingly.
__________________________________________________________________
Public Prosecutor:  Lawyers for the State	
Public Solicitor:  Lawyers for the Accused