The State v Damien Anis (2002) N2236

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 May 2002
• Citation: [2002] PNGLR 614
• Court: National Court
• Year: 2002
• Judgement Number: N2236

Full Title: The State v Damien Anis (2002) N2236

National Court: Kandakasi J

Judgment Delivered: 23 and 24 May 2002

N2236

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.199 of 2002

THE STATE

-V-

DAMIEN ANIS

WEWAK: KANDAKASI, J.

2002: 15th, 16th, 20th, 21st, and 23rd, May

CRIMINAL LAW – PRACTICE & PROCEDURE – Power of Court to call witnesses – Power can be exercised in appropriate cases – It is an appropriate case for Court to direct a witness be called where an accused claims breach of his Constitutional rights for which a voire dire is not conducted – Also where references are made to official records such as Court records witnesses may be called for independent verification

CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is the only issue for trial – Court need to caution itself that witnesses called to establish it may be mistaken – Where crime allegedly takes place during broad day light and accused identified both by faced and name and no doubt created in cross-examination on that issue it is save to act on evidence before the Court.

CRIMINAL LAW –VERDICT – Armed robbery – Identification only issue for trial – Accused positively identified both by recognition and by name – State witnessed not cross-examined on possibility of mistake in identification – State witnesses not discredited in any way – Accused own evidence supportive of State’s case – Evidence called at direction of the Court showing accused lying under oath – Caution exercise regarding possibility of mistaken identity – Totality of evidence dictating guilt of accused beyond any reasonable doubt – Guilty verdict returned

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing co-accused – Co-accused pleading guilty and receiving 9 years sentence – Need to avoid disparity of sentence considered – Appropriate case to treat prisoner differently on the basis of not guilty plea.

CRIMINAL LAW – Sentence – Armed gang robbery – Cash and value of goods stolen substantial – Only a small amount recovered – Proceeds of robbery used up to purchased beer – No prior conviction put against prevalence of offence – Strong deterrent sentence called for – 15 years in hard labour imposed - Criminal Code ss.386 (1) (2) and 19.

Cases cited:

The State v. Birch [1978] PNGLR 79.

The State v. Andrew Keake (20/11/00) N2003.

The State v. Michael Rave & Or [1993] PNGLR 85.

John Beng v The State [1977] PNGLR 115.

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

Gimble v. The State [1988-89] PNGLR 27.

The State v. Jimmy Yasasa Lep N1495.

The State v. Abel Airi (28/11/00) N2007.

Tau Jim Anis & Others v. The State SC642.

The State v. Vincent Malara (20/02/02) N2188.

The State v. Nickson Pari (No.2) (10/01/01) N2033.

The State v. Max Charles & Anor (18/10/01) N2187.

Andrew Uramani & 4 Others v. The State [1996] PNGLR 287.

Thomas Waim v. The State (unreported judgement) SC519.

The State v. Tony Pandua Hahuahori (N0.2) (21/02/02) N2186.

Counsel

Mr. M. Ruari for the State

Mr. D. Kari for the Accused

Decision on Verdict

23rd May 2002

KANDAKASI, J: You pleaded not guilty to a charge of armed robbery at the Marani Trading on the 11th of September 2000 here in Wewak where a motor vehicle and K17, 277.90 in cash and cheques contrary to s. 386(1)(2) of the Criminal Code were stolen. A trial was therefore conducted on the 15th, 16th, 20th, and 21st of this month.

Issue for trial and findings of facts not in issue

The only issue for trial was your identification at the scene of the crime as one of those involved in the robbery. That meant there are no issue on the fact of the robbery and the items alleged to have been stolen being stolen on the day and place mentioned. I therefore, find as a matter of fact that five men armed with two pistols, one home made pistol and one bush knife held up a Pat Moran and Otto Jackson at the Marani Trading here in Wewak on the 11th of September 2000, between 10:00 and 11:00 am. This happened when the victims were just about to go and do their banking of a total of K17, 277.90 in cash and cheques. In the robbery Pat Moran and Otto Jackson were forced out of the victim’s vehicle and the vehicle was driven off with the money inside. The money was inside a white PNGBC banking bag with the words amongst others “PNGBC” on one side and “Marani Trading” on the other side. That bag was inside a blue Jean bag and was in the vehicle at the time of the robbery.

There is also no dispute and I find that the banking bag and part of the stolen money totaling K1, 940.00 was recovered from you together with two .9mm pistol bullets, 2 AR 15 bullets and a blue woolen mask. That was during a police raid conducted on the 13th of September 2000, at your wife’s village at Turubu where you were apprehended and taken to the police station.

The State’s Evidence

The State called three witnesses, two of them eyewitness and the police-investigating officer. David Buatu and Otto Jackson were the two eyewitnesses. Mr. Buata was the first witness. He comes from Mour village in the Turubu area. He was a shop assistant at the time of the robbery and was he witnessed the robbery. His evidence is that, on Monday the 11th of September 2000, his boss Mr. Pat Moran and a fellow employee, Mr. Otto Jackson who usually does the banking for Marani Trading were ready to go to the bank between 10:00 and 11:00 am. Pat Moran was in the driver seat while Otto Jackson was in the crew seat of the company’s vehicle. Before they could drive out of their area onto the road, five men armed with three pistols and a bush knife appeared and executed the hold. They did so by three of them going to the front side of the vehicle and two of them on either side of the vehicle. Out of the five robbers two were unmasked while three of them were. He saw one of the unmasked men going to the driver side ordering Pat Moran out of the vehicle. In compliance of the order, Pat Moran came out of the driver’s seat of the vehicle. One of the robbers with the bush knife chased the witness into the wholesale area while the other went to Otto Jackson in the crew side of the vehicle. Then all of the robbers got on the vehicle and drove way.

This witness said the unmasked man ordering Pat Moran out and getting into the driver seat and driving it away with the other robbers on was you. He says you are a common face to him has you are married to his area Turubu although from a village different to his. He also says your name became popular in relation to a highway robbery turning into a murder case. He also says he was about 5 to 7 meters away from where the hold up took place and there was nothing obstructing his view. As such, he was able to see what was happening very clearly and also clearly identify you.

Nothing was put to him in cross-examination that questioned his identification of you at the scene of the crime and your participation in it has described. For example, no questions were asked about his eyesight or something like that, which could suggest his identification of you was mistaken. The only questioning that might be of relevance on this issue was the witness saying he was in a state of “shock” in pidgin when the armed hold up took place. There is however, no evidence of him have a blackout of sight or mind or consciousness. Given this and noting that the term “shock” was used in pidgin, I take the reference to “shock” to mean being taken by surprise. Further nothing was put to him that could be suggestive of him having a reason to come into Court and tell a deliberate lie against you. Similarly, nothing was put to him or is in evidence about the weather that could also cast some doubt on the ability of this witness’s identification of you at the scene. Further more, nothing was put to him or there is evidence suggestive of this witness not being a credible witness. Simply put, there is no reason for me to reject this witness’ evidence. Instead I find him both a credible and reliable witness. I therefore accept his evidence.

The other witness, Otto Jackson corroborates Mr. Buata’s evidence, especially in relation to the number of robbers and the number of the robbers that were masked and unmasked and how...