The State v Michael Manowi (2009) N3588

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 February 2009
• Citation: (2009) N3588
• Docket Number: CR NO 1386 OF 1999
• Court: National Court
• Year: 2009
• Judgement Number: N3588

Full Title: CR NO 1386 OF 1999; The State v Michael Manowi (2009) N3588

National Court: Cannings J

Judgment Delivered: 17 February 2009

N3588

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1386 OF 1999

THE STATE

V

MICHAEL MANOWI

Kimbe: Cannings J

2009: 12, 13, 17 February

VERDICT

CRIMINAL LAW – trial – armed robbery – identification evidence – alibi evidence.

The accused was indicted for armed robbery. Two State witnesses gave evidence that it was the accused who joined with another man in holding them up at gunpoint and stealing K51,751.49 in cash and cheques, being the day’s takings of a retail store. They had also identified him in a police ID parade. The accused denied that it was him and gave sworn evidence that he was in another province on the day in question.

Held:

(1) Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioned itself, as the tribunal of fact accordingly, the court was satisfied, having regard to the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, that the identification evidence was of very high quality, as:

· each witness was credible and his demeanour sound;

· the lighting was sufficient to make a clear identification;

· the criminal’s face was uncovered;

· each witness, though only looking at the criminal’s face for a matter of seconds, had sufficient time to make a clear identification;

· each witness (and particularly the second) got a close-up view of the criminal’s face;

· each witness, while in fear of his life, retained his composure sufficiently to make a clear identification;

· each witness saw the criminal’s face front-on, with an uninterrupted line of sight;

· there was no significant inconsistency between their evidence;

· each witness separately identified the accused at an identification parade conducted seven weeks after the incident.

(2) As to the alibi evidence, the court was 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:

· though it was, in general terms, consistent with the accused’s record of interview, no notice of alibi was provided to the State, so it is a belated alibi;

· the accused was an unimpressive witness as his demeanour was poor and he gave vague and inconsistent evidence;

· the alibi was entirely uncorroborated.

(3) As to weighing of the identification and alibi evidence, the identification evidence, considered alone, was sufficient to sustain a conviction. The alibi evidence did not give rise to any doubt that the accused was one of the criminals who committed the robbery and, being so poor, corroborated the State’s case.

(4) The State proved beyond reasonable doubt that the accused was guilty of aggravated robbery under Sections 386(1) and (2)(a) and (b) of the Criminal Code.

Case cited

The following cases are cited in the judgment:

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

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (No 2) [1983] PNGLR 318

The State v Boria Hanaio & Others Cr Nos 122 & 123 of 2007

The State v Francis Vau Kamo (2006) N2991

The State v Noutim Mausen (2005) N2870

The State v Robert Wer & Others [1988-89] PNGLR 444

The State v Sei Nakiking Tubol & Others [1994] PNGLR 378

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigation Division

CR – Criminal case

ID – identification

K – Kina

N – National Court judgment

No – number

OIC – Office-in-Charge

PNGBC – Papua New Guinea Banking Corporation

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

Sgt – Sergeant

V – versus

TRIAL

This was the trial of an accused charged with armed robbery.

Counsel

F Popeu, for the State

R Beli, for the accused

17 February, 2009

1. CANNINGS J: At 5.30 pm on Thursday 12 August 1999 an armed robbery took place in Kimbe. The manager of the K-Mart retail store, Tommy Leach, and one of the store supervisors, Alfred Giru, were held up close to the store. They were transferring the day’s takings to another location in town.

2. The accused, Michael Manowi, now aged 34, an East Sepik man who has lived most of his life at Kapore, near Kimbe, is charged with aggravated robbery under Section 386 of the Criminal Code, over his alleged involvement in the incident. He has pleaded not guilty so a trial has been held and this is the verdict of the court.

THE STATE’S CASE

3. Mr Leach and Mr Giru have given oral evidence about what happened that day. They were about to exit from the laneway between K-Mart and the then PNGBC bank. Mr Leach was driving and Mr Giru, the only other occupant of the vehicle, was the offsider. Mr Leach stopped the vehicle to give way to a passing utility. Before he could get going, a man walked towards their vehicle from across the street. He went close to Mr Giru’s door and pointed a gun at Mr Giru and ordered him out of the vehicle and demanded money. At the same time, another man approached the vehicle from the right, stood close and pointed a gun at Mr Leach. Neither gunman had his face covered.

4. Mr Giru handed the gunman a bag containing K51,751.49 in cash and cheques. The gunman also demanded a Sepik basket that Mr Giru had hanging around his neck. This contained personal items and Mr Giru initially refused to give it up. But the gunman was insistent and it was handed over also. Both gunmen took off and commandeered and boarded a passing bus. A single gunshot was fired. The bus was driven off. The gunmen were gone with the money. Neither Mr Leach nor Mr Giru was physically injured.

5. Mr Giru said that he saw the gunman who was closest to him at nearby Kisere the following day. When he approached him, he melted into the crowd. He saw him again about six weeks later. He contacted the police who arrested the suspect and put him into custody. That suspect is the accused. A few days later, on 28 September 1999, a police identification parade was conducted. Mr Leach and Mr Giru separately identified the accused as the gunman who got the bag from Mr Giru.

6. In court, they each pointed out the accused as being that gunman.

THE DEFENCE CASE

7. The accused presented an alibi. He gave sworn evidence that on the day in question he was in Lae, Morobe Province. He had gone there to look for used cars, on the request of a couple, Rueben and Sheila. They live at Nahavio, near Kimbe. They paid for his ship fare. He travelled with a friend called Baptist. He left on 11 August 1999 and came back some time in December 1999.

8. In cross-examination, he could not remember Rueben’s or Baptist’s other names. Reuben is a mixed race man who still lives around Kimbe. Baptist has probably gone back to his village in East Sepik. It may have been in September, not December, that he came back. It was a long time ago and he cannot recall his return date but he can clearly remember going there in August.

9. That evidence is, apart from the confusion over his return date, generally consistent with what is in his record of interview, dated 6 October 1999. That was the only evidence for the defence. There was no other corroboration.

ISSUES

10. It is agreed that there was an armed robbery on the day in question and that Mr Leach and Mr Giru were held up by two gunmen and that cash and cheques were stolen. What is not agreed is that the accused was one of the gunmen. To determine whether he was one of the gunmen, four issues must be addressed:

1 What is the quality of the identification evidence?

2 What is the quality of the alibi evidence?

3 What is the result of weighing the alibi evidence against the identification evidence?

4 Has the State proven the elements of the offence beyond reasonable doubt?

1 WHAT IS THE QUALITY OF THE IDENTIFICATION EVIDENCE?

11. Defence counsel, Mr Beli, submitted that the evidence of Mr Leach and Mr Giru was unreliable. Both admitted that they did not know the accused and had never seen him before the robbery. They have not seen him since the ID parade. They both feared for their lives and Mr Leach said that he panicked. Neither had been a victim of armed robbery before so they were unprepared and not in a sufficiently balanced state of mind to be able to remember the face of the gunman. Mr Giru gave evidence that he had to control Mr Leach, as he was afraid he might do something out of the ordinary. The robbery happened so fast – it was over and done with in a space of seconds – that neither witness had a chance to make a positive identification. Neither witness could point to any distinguishing facial features such as a tattoo or scar that would have enabled them to remember the gunman. Mr Leach was distracted by the other gunman standing at the driver’s side of the vehicle with a gun pointed at his head and he would not have been able to get a clear view of what was happening on the other side of the vehicle.

12. I have considered all those submissions in light of the competing submissions of the prosecutor, Mr Popeu. I have also considered the principles on identification evidence in the leading Supreme Court...