The State v Cherobim Kani Peso (2003) N2412

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 June 2003
• Citation: (2003) N2412
• Court: National Court
• Year: 2003
• Judgement Number: N2412

Full Title: The State v Cherobim Kani Peso (2003) N2412

National Court: Kandakasi J

Judgment Delivered: 13 June 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 204 of 2001

THE STATE

-V-

CHEROBIM KANI PESO

WEWAK: KANDAKASI, J.

2003: 5th, 11th and 13th June

CRIMINAL LAW - Armed robbery – Identification only issue for trial – Witness recognizing known person - Witness coming face to face with accused - Broad day light – Accused not masked –No reason to falsely testify against accused – Circumstantial evidence including clothes worn by accused 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.

Papua New Guinea Cases Cited:

The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.

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

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

The State v. Raphael Kimba Aki (26/01/01) N2039.

The State v. Fabian Kenny (16/05/02) N2237.

The State v. Jamie Campbell Fereka (07/04/03) N2359.

State v. Lucas Yovura (02/05/03) CR 2002 of 2000 (judgement yet to be numbered).

The State v. Edward Toude & Ors, (18/10/01) (No. 2) N2299.

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

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

Tau Jim Anis v. The State SC642.

Acting Public Prosecutor v. Don Hale (27/08/98) SC564.

Overseas Cases Cited:

Browne v Dunn (1893) 6 R 67 (HL).

Counsel:

Mr. P. Kaluwin for the State

Mr. G. Korei for the Accused

13th June, 2003

KANDAKASI J: You pleaded not guilty to a charge of armed robbery under s. 386 (1) and (2) of the Criminal Code which occurred here in Wewak on the 30th of August 2000. The robbery was committed against Ruth Benny, who lost a sum of K1, 500.00 to the robbers.

You claim that you were not involved in the robbery. The only issue therefore as confirmed by both counsels during pretrial and again at the outset of the trial was identification. In other words, the basis for the trial in this matter is whether you were the robber or was one of them involved in the robbery?

The State called Ruth Benny, one of the victims and Sergeant Patrick Wallace in a bid to establish the charge against you. On your part, you took the oath and gave a sworn testimony in your defence. The State witnesses testified essentially that they both knew you, prior to the robbery and clearly identified you as one of the persons involved in the robbery. Your testimony is that you were at the Boram Hospital and were thus not involved in the robbery.

A decision on your guilt or innocence is hence depended on which side’s evidence I accept. That decision can only be arrived at after carefully considering the accounts of each of the witness’s evidence, testing that against logic and commonsense and their demeanor in the witness box. Accordingly, I will now proceed to state and consider each of the witness’s evidence and decide whether to accept or not to accept their evidence.

First State Witness – Ruth Benny

I start that process with a consideration of the State’s first witness, Ruth Benny. She is one of the victims of the robbery. She came to Wewak in 1985 and has been living in Wewak up to this day. Her husband comes from this province too. She states that, she knows you and your family very well. Your mother, Agatha, the witness says, is a very good friend of hers. They used to share things such as foodstuff together. You confirmed her friendship with your mother based on your mother telling you about it. She clearly identified you in Court by pointing her finger at you in the accused box.

She also said because she knows you and your family well, her family would also know you and your family.

After the robbery, she says, your mother stopped talking to her or had anything to do with her until November 2001, when she approached the witness and asked her to give you and them some time to find the K1,500 and repay her in exchange for her dropping the case against you. But she told your mother, the matter had already been to the committal court and that you were committed to stand trial before the National Court. So she told her to speak to the Police with her proposal. Since that time, the witness says she has not seen your mother until now and identified her in Court sitting next to the accused box.

The rest of her evidence is this. On Monday the 28th of August 2000, you went to her coca buying business establishment under the name, PNG Cocoa International with some of your relatives who went there to sell their cocoa. She paid your relatives for their cocoa. After that, you and your relatives went out. Whilst outside, you talked with your relatives and went back inside to the witness’s office and argued with her and thereafter left with your relatives.

On Wednesday the 30th of August 2000, she went to the bank with her husband and withdrew K6,000.00 to pay some coca producers. Out of that, she paid K4,500.00 to some producers at the bank premises and retain K1,500.00 to pay some others. She and her husband then headed back to her office. As they were walking, she sensed that someone was at her back. So she turned and as she turned, you walked into her front, armed with a knife with another person, who was armed with a pistol. The one with the pistol held her husband up from his front while you held her up at knifepoint also from her front. Although she was surprised, she could clearly look into your face and see that it was you. You wore a blue jean trousers and a black “T” shirt with white strips and wore a cowboy cap on your head. At that time, the time was about 11:30 am and you wore no facemask to disguise yourself.

During the holdup, you said to the witness, the pistol was loaded with live bullets and demand her bag which contained the K1, 500.00 to pay cocoa producers and a further K30.00 belonging to a friend intending to buy some sawing material. At that time, you had your knife pointed at her and pulled her bag away from her and ran with it. So she and her husband gave chase after you to the Caltex Service Station bus stop area. When she and her husband reached the road, Sergeant Wallace, attached to the CID division of the Police Force, drove up in a Police vehicle. So she and her husband reported the incident to him and told him that it was you that robbed them and they were giving chase.

Her husband got on the police vehicle and headed for the main road to block you off, while she continued to give chase to you. As she came after you, she saw you run into the 3rd house in Kreer Compound close to the Kreer Compound bus stop. She got there and asked where was the person that ran into this house. The people there said they did not know. At this stage, she decided to terminate further chasing and searching for you and went to meet up with her husband and Sergeant Wallace.

Upon meeting up with her husband and Sergeant Wallace, she told them that you had gone into a house. From there, they decided to allow Sergeant Wallace to go to town where he had originally wanted to go and she went to the Police Station and reported the robbery.

Second State Witness - Sergeant Wallace

The second State witness, Sergeant Wallace supports the first witness’s evidence from the time when that witness said she and her husband stopped the witness whilst pursuing you. He also confirms seeing you running across the road near the Caltex Service Station bus stop, with a blue jean trousers and a black “T” shirt with white strips.

He too said he knows you well, starting from working with you during the 1997 National General Elections. He says, he has been living and working as a policeman in Wewak for 26 years now. Further, says he has come into contact with you from time to time in the course of his duties. He specially said he has spoken to you on occasions concerning your drinking habits and has asked you to behave. Based on this knowledge of you, he says he made no mistake in identifying you.

Your Evidence

Your testimony is that, on the day and in particular the time of the robbery, you were at the Boram Hospital getting medical treatment. Upon returning from the hospital and getting off at the Caltex Service Station bus stop, you then walked to your house and the Police stopped you. They then asked if you had done any wrong and you answered no. Thereafter, they asked you to hope on their...