Philip Kassman v The State (2004) SC759

• Jurisdiction: Papua New Guinea
• Judge: Jalina J, Sawong J, Batari J
• Judgment Date: 20 August 2004
• Citation: (2004) SC759
• Docket Number: SCRA 55 of 2001
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC759

Full Title: SCRA 55 of 2001; Philip Kassman v The State (2004) SC759

Supreme Court: Jalina J, Sawong J, Batari J

Judgment Delivered: 20 August 2004

1 CRIMINAL LAW—Appeal against conviction—Identification evidence—Unsworn statement of accused—Weight of evidence—Appeal dismissed.

2 CRIMINAL LAW—Appeal against sentence—Robbery—Robbery akin to robbery of a bank—Relevant considerations—Appeal dismissed.

3 R v Philip Boike Ulel [1973] PNGLR 254, John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988–89] PNGLR 153, Gimble v The State [1988–89] PNGLR 271, Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis v The State (2000) SC642 referred to

___________________________

SC759

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 55 OF 2001

PHILIP KASSMAN - Appellant

v

THE STATE - Respondent

Waigani

Coram: Jalina, Sawong & Batari JJ

26 November 2003

20 August 2004

CRIMINAL LAW – Appeal against conviction - Identification evidence – Unsworn statement of accused - Weight of evidence - Appeal dismissed.

CRIMINAL LAW – Appeal against sentence – Robbery – Robbery akin to robbery of a bank - Relevant considerations – Appeal dismissed.

Cases Cited:

The following cases are cited in the judgment:

R v Phillips Boike Ulel [1973] PNGLR 254

John Beng v The State [1977] PNGLR 471

Biwa Geta v The State [1988-89] PNGLR 153

Gimble v The State [1988-89] PNGLR 271

Public Prosecutor -v- Don Hale (1998) SC. 564

Tau Jim Anis -v- The State (2000) SC 642

Counsel:

D. Koeget for the Appellant

J. Pambel for the Respondent

20 July 2004

BY THE COURT: The Appellant was convicted by the National Court in Waigani on 21st September 2001 of the offence of robbery following a trial and sentenced to a term of 10 years imprisonment.

He is appealing to this Court against both conviction and sentence. He challenges his conviction on the grounds that the evidence of identification is “very poor and insufficient” and that the conviction is unsafe in the circumstances. His ground of appeal against sentence is that, “The sentence should have been under the level of the charge.”

At the trial, it was undisputed that on 22 November 1999, the victim of the robbery, Fred Ng of Gordons Service Station had gone to the ANZ Bank, Waigani Branch to deposit the company’s takings. He was held up by 4 men at gun point outside the bank and the money bag taken off him. The robbers also took from him, the keys to his vehicle intending to use it to facilitate their escape but when the vehicle failed to start, they tried to escape on foot and the appellant was caught together with one other suspect in the attempt. The money bags were also recovered.

The appellant contested on his trial, allegations against him that, he was one of the robbers who was chased out of the bank premises and subsequently caught by the police as he fled across the road towards Boroko Motors premises. He claimed that he was innocently present on the scene and was mistakenly caught when he and others ran for cover after police fired shots. His story was that he had just gotten off a bus at a bus stop next to ANZ Bank intending to see his father at Islander Hotel (now Holiday Inn) and was alerted by a commotion near the ANZ Bank. He went over to investigate but when police fired shots, he fled with others in different directions. It was then that police apprehended him. He gave unsworn evidence to that effect in his defence at his trial.

The evidence of identification came from State witness, Bernard Kono. He was the security guard supervisor on duty at the ANZ Bank premises when the robbery occurred. About 15 minutes before the bank opened, he noticed 4 men outside the bank and became suspicious of their movements. He also cautioned his fellow security guards to be on alert. A man of Chinese origin drove into the bank’s car park at about 9.00am and was held up at gun point by the 4 men. They got his car keys together with the money bag but then fled on foot when the vehicle failed to start. The other guards fought two of the robbers towards the gate while he intercepted another and retrieved the money bag after attacking him. He said one of those who ran out of the gate was the person who held the pistol at the door of the bank and described him as slim, tall with a beard, going bald and possibly of Kerema origin. He later identified the appellant and his co accused as the two robbers who were chased out of the gate.

Counsel for the appellant argued this witness’s evidence is far from reliable as he did not positively identify the person who held the gun out of the two who were apprehended soon after the robbery. The appellant was apprehended after the robbery but the witness did not positively say he was one of the robbers. He also argued that the evidence of this witness was lacking in detail on the role each robbers played during the robbery. On that basis and due to other inconsistencies, his story should not be accepted. In his judgment, the trial Judge closely analysed the victim’s evidence and accepted him as a witness of truth.

Bernard Kono’s evidence was supported by two policemen, Klink Memo and Penny Tolili. Both witnesses spoke of traveling in a police vehicle with 3 other policemen along Cameron Road towards the traffic lights. As they approached ANZ Bank, they were alerted by a commotion from the robbery. They stopped the vehicle in the middle of the road and at the same time, they saw people running from the gate of the bank premises. Klink Memo saw one of the suspects running out of the gate and across the road in front of their vehicle towards Boroko Motors. He pursued and apprehended that person at Boroko Motors yard. He brought the suspect to the vehicle where security guards identified him as one of those involved in the armed robbery. That person was the appellant whom the witness also gave his name as Philip Mega Kassman. Penny Polili spoke of two suspects who ran out of the gate and along Cameron Road in the direction of Daltron Electronics. He pursed and apprehended one of them whom he later came to learn of his name as Chris Seia. The defence suggested that the two men were part of the fleeing crowd caused by gun shots that police had fired upon their arrival at the scene of the robbery. They were therefore mistakenly apprehended. However, the witnesses clearly identified the accused as the person they saw running away from the bank. The appellant was seen running towards Boroko Motors. He was chased and apprehended shortly after the robbery.

The appellant and his co accused both gave unsworn statements on their...