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State v Tuku (No. 1) [2024] PGNC 196; N10845 (21 May 2024)

N10845

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 49 OF 2023

THE STATE

V

SOLOMON TUKU
(No 1)

Kokopo: Miviri J
2024: 20^th & 21^st May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery Section 386 CCA – Trial – Home robbery – Aggravated Armed Robbery Not Denied – Identification – False Alibi No Notice of Criminal Practise Rules Order 8 Division 2 Rule 3 – Corroboration of Identification Evidence – Incredible Defence Case – Credible State Case – Very Good Lighting – Not Fleeting Glance or Masked Hood – Prior Acquiesces With Accused – Known By Name – Good Opportunity to Identify – State Case Accepted – Identification Beyond Reasonable Doubt – Guilty of Aggravated Armed Robbery – Remanded for Sentence.

Facts
Accused was part of a group of men who were armed with bush knives and went to the dwelling house of John Rusiat assaulted his in law broke down the door entered assaulted another in law and stole a chainsaw and assorted personal items to the value of K 5, 726.50 all belonging to John Rusiat, and escaped.

Held
Aggravated Armed Robbery not denied.
Identification Issue.
False Alibi.
Good Evidence Identifying.
Defence Evidence rejected.
State Case upheld.
Guilty of Aggravated Armed Robbery.
Remanded for Sentence.

Cases Cited:
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
John Beng v The State [1977] PNGLR 115
Gimble v The State [1988-89] PNGLR 271
Wani v The State [1979] PNGLR 593

Counsel:
J. Sausoruo & D. Mark, for the State
N. Loloma, for the Defendant

VERDICT

21^st May 2024

1. MIVIRI J: This is now the verdict after trial hearing evidence with submissions by both parties against Solomon Tuku of Tindomi village, Nipa District, Southern Highlands who is charged with Aggravated Armed Robbery of the dwelling house of John Rusiat. In that he accompanied others armed with bush knives at nighttime on the 4^th October, 2022 at Gunanur, East New Britain Province assaulted John Rusiat and others using actual violence stole a 070 steel Chainsaw and assorted personal properties including clothes bag valued altogether at K5, 726. 50 all the property of John Rusiat and escaped.
   
2. He stands by Indictment of the 17^th of May 2024 contrary to Section 386 (1) (2) (a) (b) (c) of the Criminal Code Act which has invoked section 7 (1)(a)(b) and (c) of that Act in that he aided and abetted the others in the aggravated armed robbery and is therefore guilty as charged. The section is in the following terms: -
   

“(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; or
(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery,

wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.” [Criminal Code (Amendment) Act 2022(certified 12 April 2022)]

3. It is not in issue by the evidence called of three principal witnesses, John Rusiat, Noel Palina, and Ludwig Palina that on the night of the 04^th October 2022 there were three men who were armed with bush knives who came into the yard of John Rusiat’s premises and assaulted Ludwig Palina. Then they chased after Noel Palina who successfully escaped into the dwelling house of John Rusiat. But they pursued him and pushed on the door entering which he had closed and locked. His strength was not enough, and they broke open the door and went inside. They assaulted and cut him with the bush knives, and he fell to the floor. They proceeded into the bedroom of John Rusiat who was armed with a bush knife. He chased them with it, and they ran out of the house. In the process they picked up his 070-steel chainsaw and a clothes bag altogether valued at K5, 726.50 and escaped with it.
   
4. I find beyond all reasonable doubt that there was aggravated armed robbery committed on the night of the 04^th October 2022 by three men armed with bush knives who came into the yard of John Rusiat’s premises and assaulted Ludwig Palina. Broke down the door that had been closed by Noel Palina assaulted and cut him and stole as I have set out above. What now remains is the identities of those three men. And for these the State has tendered into evidence by consent the record of interview Exhibit P1(b) the pidgin original version, and the English translation Exhibit P1(a). In it he has denied that he committed the offence. He states primarily and importantly that he was with his wife, one Michaeline. And that they were asleep together with their child in the early hours of the morning of the subject date of the allegation set out above. For a person educated to primary School and married to Michaeline with a child from that union, he does not know the names of his in-laws, parents of Michaeline to whom he has been married for 3 years with a child born from that relationship. It does not need education, nor does it did research and a long pause as here to recount one’s father and mother in-laws names. Especially as here where he has lived with her for three years culminating in a pregnancy and delivery of a child. The effect of his evidence is that his wife has no maiden name left her on the record.
   
5. He is not of advanced age memory loss as a result of the toil of age. He is a vibrant young man aged 27 years old educated in the sense that he has secured work with Balsa Mill CPL. Obviously that entails educational requirements to sustain work and be employed. It therefore begs as to how he cannot name his wife of three years now with his child in her maiden name. I find it incredible on his evidence on oath where he could not name his wife’s parents, her maiden name before he married her. It is just at the tip of one’s tongue and just comes out because it has come one in that union. In the case of the accused three years with a child from that union. Yes, he has deposed to that fact on the 17^th October 2022 in that record of interview that on that date of the allegation he was with his wife and child sleeping in the house with Chris who has been identified by the witnesses as one of the assailants at that time in company with him. He has not brought his wife in support of his alibi but relied solely on the admission of his admissions to that effect in the record of interview and evidence on oath in defence.
   
6. The credibility that he raises of an alibi being with his wife is questionable. Because he does not disclose her full name as set out above. It begs whether he was indeed with her on this day of the allegation. Common sense denotes that one cannot be at two places simultaneously one and at the same time. It is totally inconceivable and is therefore an important aspect in the case of the accused. Either he was with his wife and not responsible for the allegation. Or that he was identified and part of the robbers in what they did to John Rusiat. Particularly of a close relation as here, his wife who he cannot name her maiden name. And it begs why the committee from Gunanur would head straight to him and Chris at their house with a cap, an iron rod and shirt. These are common things in everyday life and could belong to any person in the world let alone Gunanur. It must be distinctive to lead to the pick of the accused and his cousin and no other. And the evidence of John Rusiat in this regard is very clear on the identification of the Accused together with Chris, his cousin. It is the same evidence that comes from Ludwig Palina and Noel Palina.
   
7. Aligned with the law set out in Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009), these are very serious unexplained inconsistencies that do not hold up his evidence. Because any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. He is alone is his defence. It does not mean he cannot make on his own. But the fact in aggregate is that there is no common sense and logic denoting underlying his evidence. What is clear from the evidence of these witnesses are that there was more than ample lighting inside and outside the house of John Rusiat. By that fact the accused was seen in that light as he came up close to effect the attack that was made. Given that fact in that light he was unmistakenly picked out because together with Chris, both were recognized and picked out. John Rusiat was resident at Gunanur for four years and knows the accused’s parents and the Accused because the former are regular vendors at the kokopo Market. And they always meet up, so he knows the Accused from prior relationships. He specifically says that he chased the Accused accomplices out from his house with the bush knife and saw the accused outside who also ran away with the others. But the cap that belonged to Chris and Shirt belonging to the Accused were confirmed by this witness whose views were further confirmed by the Committee and together they took that to the accused house.
   
8. This evidence ties in with Noel Palina who flashes the torch that he had into the face of the accused and sees him spot on. I was pushing the door as soon as I took two steps back after the door was broken in, I flashed the torch to see his face. That is the same evidence recounted by Ludwig Palina who was resident in Gunanur for two years and used to see the Accused around the Compound prior to the offence. There was a spotlight within which he was able to see the accused as one of the robbers. And two years they used to come to the house. So, from that association when he saw him, he knew him and identified him by name and face. He recognized him. The immediate area of the robbery is the dwelling house of John Rusiat whose evidence common and consistent with that of Noel Palina, and Ludwig Palina all individually called on oath is that the house is well light by wired and solar lights both inside and outside. It is a well light area and vision is not impaired or suppressed so as to distort the identification of the Accused.
   
9. These evidence in aggregate fit the law on identification set out in John Beng v The State [1977] PNGLR 115. Because this is not fleeting glance made out in difficult lighting circumstances of a stranger. The defendant is well known and was identified in very good lighting by all three witnesses called. He always comes to that house and is known by all three witnesses. That is why his properties including his cousin, Chris’s were picked and taken straight back to their house where both were apprehended together. I am mindful particularly given that, “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.” John Beng (supra)
   
10. I caution that mistakes have been made in identification. And have been so because of the conditions laid out in the identification made. The evidence that have set out of the three witnesses to this do not in my view lead that is the case. This is not mistaken identification in a fleeting glance situation or of a masked hood in difficult lighting conditions. This is identification of a well-known person from prior association with the witnesses all three. That is the source that has led immediately after the offence to the house of the accused’s where he is taken into custody with Chris. This is recognition at very close quarters so that the knife is swung to affect the injury to Noel Palina. All from the various points are at that time see the same persons, Accused Solomon Tuku with his cousin Chris. The quality of identification is good there is no reason to doubt the veracity of their evidence individually and severely. Because the conclusion is the same it was this accused who was identified by all three witnesses.
    
11. Consequently, I am not impressed with the evidence of the defence for the reasons that I have set out above. I reject his evidence outright as I find no merit to advance his cause for the reasons that I have set out above. I find as a fact that the accused Solomon Tuku was part and partial of the aggravated armed robbery upon John Rusiat. His identification has been established beyond all reasonable doubt at this location on the 04^th October 2022. He was part and partial of that robbery. Because he is a principal offender by read of Gimble v The State [1988-89] PNGLR 271 at 273, “The general rule is that all active participants in the crime shall be sentenced on the same basis The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.” He was an active participant in accordance with Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979). I find him guilty as indicted of aggravated armed robbery committed upon John Rusiat on the 4^th October, 2022 at Gunanur where his chainsaw and clothes bag was stolen.
12. He will be remanded to await sentence which is adjourned to tomorrow Wednesday 22^nd May 2024 at 9.30am. Remand warrant will issue accordingly.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant