The State v Marety Ame Gaidi (2002) N2256

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 01 August 2002
• Court: National Court
• Citation: (2002) N2256
• Year: 2002
• Judgement Number: N2256

Full Title: The State v Marety Ame Gaidi (2002) N2256

National Court: Kandakasi J

Judgment Delivered: 1 August 2002

N2256

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 247 of 2001

THE STATE

-V-

MARETY AME GAIDI

WAIGANI: KANDAKASI, J.

2002: 16th and 17th July

1st August

DECISION ON VERDICT

CRIMINAL LAW - Armed robbery – Identification only issue for trial – Eye witness talking face to face with accused taking about 3 minutes - Broad day light – Accused not masked –No reason to falsely testify against accused – No real challenge on witnesses ability to identify – Identification of accused at police station on sight of accused as the person he saw at scene of robbery – Circumstantial evidence including vehicle used during robbery support accused involvement in the robbery – Need to warn of the apparent dangers of purported identification - Court satisfied that the accused was positively identified as person involved in the robbery – Guilty verdict returned - Criminal Code ss.386.

Cases cited:

John Beng v. The State[1977] PNGLR 115.

The State v. Raphael Kimba Aki (unreported judgement delivered on 26/01/01) N2039.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

Counsel

Mr. M. Boni for the State

Mr. B. Takin for the Accused

1st August, 2002

KANDAKASI J: You pleaded no guilty to one charge of armed gang robbery on the 3rd of August 2000, at East Boroko, National Capital District where cash and goods totaling K9,600.00 was stolen. This necessitated a trial, mainly on the issued of identification as the other important aspects of the charge were not in issue.

In a bid to establish the charge against you, the State called 4 witnesses namely, Alex Theo, Baia Abubu, Sioni Papi and Milton Kelemandi. It also had admitted into evidence the following documents with your consent:

1. Statement of Ngu Kei Dung dated 11th of September 2000 – Exhibit “A”;

2. Statement of Milton Kelemandi undated – Exhibit “B”; and

3. Statement of Dominic Sumala dated 3 August 2000 – Exhibit “C”

Undisputed facts and findings of fact

From these witnesses and the statements, the undisputed facts, which I so find as facts are these. On the 3rd of August 2000, between 10:00am and 11:00am an armed gang robbery took place at Section 6, Allotment 7, Bisini Parade, East Boroko, National Capital District. Four men, two in police uniform and two in civilian cloths drove up to the gate of a house with a company office downstairs at the above place. One of the two in civilian was the driver of the vehicle described as a Toyota Hilux, Surf, white in colour and bearing registration number BBD 519. The driver stopped the vehicle at gate. Witness Abaia Abubu, who was then employed as a security, asked the driver, what were they looking for. Then the person sitting in the crew seat, who was in police uniform, said they were looking for Alex Theo. So the witness told them, Alex Theo was there and he opened the gate for them to drive in thinking, they were Alex Theo’s friends or had something to do with him. This took about three minutes. During this time, the witness was facing and talking to the driver who had no cap or mask over his face. The distance between the witness and the driver was about 1.5 meters.

Once the gang was inside, the vehicle was parked and the two men in police uniform with the other man in civilian went into the office. The driver waited in the vehicle. From the Abaia Abubu’s position, the vehicle was parked in a way that gave him a side view of the driver. He was therefore, able to see the drive in that view during the time the vehicle was there. Alex Theo estimated that the robbery took about 10 minutes so Mr. Abubu observed the driver for a total of about 13 minutes.

As soon as the gang entered the office where Alex Theo and Ngu Kei Dung (“victims”) were, they were taken to be policemen. Ngu Kei Dung thought the policemen wanted to talked to Alex Theo as they were asking for him as they entered, so he tried to excuse himself. He was however, asked to remain. Then one of the men in police uniform produced a gun and said it was a hold up and ordered Alex Theo to open all the draws in the office. The gang took from the victims, cash and goods including a laptop computer (notebook). The total of cash and value of goods stolen was about K9,600.00.

The gang tied both of the victims, hands and legs and put them on the floor, before getting out of the office and driving out as if nothing had happened. They said thank you to the security, Mr. Abubu and left.

The victims did not put up any resistance or called for any help in fear of their lives because a gun was pointed at them. They therefore, merely complied with the orders that were given by the gang. However, as soon as the gang was out of the gate, Alex Theo shouted for help indicating that a robbery had just taken place. Mr. Theo called Mr. Abubu to confirm the identity of the vehicle and he did. Police were then notified.

Upon receipt of report, police tactical and other units were notified of the robbery and were instructed to keep a lookout for the vehicle used in the robbery. At about 2:30pm., a police tactical response unit vehicle sighted the vehicle at Konedobu and started to tail it and stopped it near the Central Provincial Headquarters. Police took from you the vehicle you were driving and took you out of the vehicle and put you into their vehicle after searching you. A policeman drove the vehicle you had driven into the Boroko Police Station.

You were searched again at the police station. That search resulted in a K20.00 being recovered from your shirt pocket, K450.00 from your back right pocket of a red jaw jeans and K700.00 from your underwear. You were then formally arrested and charged with armed robbery.

Disputed facts

You deny being the driver of the vehicle at the time and during the robbery and therefore being a part of the robbery. You say an Otis who was working on the vehicle gave it to you to work on it as well in your capacity as a mechanic. Its owner is an Aisa. Without specifying what the problem was, you had it fixed and was giving a test drive to Konedobu to pick up a copy of your grade ten certificate after loosing your original copy.

Also, you claim that the money found on you was part of the proceeds of a sale you made of your own motor vehicle. You said you sold you vehicle to a friend for K4,000.00 and he made a part payment of K2,000.00 on the previous Friday. You spent part of it and the balance was with you when you were arrested. You agreed to questions put to you in cross-examination that, it was unsafe to carry such sums of money in the way you had and that, it was also uncomfortable to have about K700.00 in your underwear. You did not however, provide any explanation as to why that was necessary when you could have put it in your house or even at a bank. Your response to such questions was that, it was your money and that, it was up to you to put it where-ever you wanted to.

The State’s second witness, Mr. Abaia Abubu, identified you in Court as the person he saw during or at the time of robbery. He says he spoke to you at the gate as you drove in and saw you out after seeing you in the car park of the property. His contact with you was about three minutes face to face at the gate and a further 10 minutes whilst you were in the vehicle waiting for the others.

There is nothing in evidence to suggest that it was a poor day, or that the witness has bad eyesight or that he has something against you sufficient to come into court and give a false testimony against you. Further, there is neither any evidence nor any suggestion that the witness’ view was obstructed in any way. The evidence is however that, this was a robbery conducted with such calm and ease during broad day light made possible by the presence of two of the gang members in police uniform and neither yourself, nor the other man in civilian being disguised in any way. He reconfirmed is identification of you on the same day of the robbery at the police station unaided by any policeman or any other person wanting this witness to connect you to the robbery.

The Law

The correct principles governing how to treat identification evidence is set out in the Supreme Court judgement in John Beng v. The State [1977] PNGLR 115, at pp. 122 –123. I set out the relevant part of that...