State v Kawok [1988] PGNC 1; N653 (8 January 1988)

Unreported National Court Decisions

N653

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
RUTI KAWOK

Mount Hagen

King AJ
7-8 January 1988

KING AJ: At the conclusion ofState tate case in this matter which involves a charge of armed robbery against the accused upon indictment the defence has made a submission that no case to answer is disclosed upon the evidence and it is this question that I must now decide.

It is convenient at the outset to summarise the basic arguments for and against the “no case” submission before commenting on the evidence. The defence Counsel concedes that in the State case there is some evidence which, if believed by the tribunal of fact, would support a conviction, but argues that this case is within the exceptional second limb of the decision of the Supreme Court in State -v- Roka Pep, 1983 PNGLR 287, and that it is apparent that such evidence as would support a conviction must be regarded as unsafe or unsatisfactory. The Supreme Court in Roka Pep’s case did in my view recognise that in appropriate, but exceptional circumstances, a no case submission could be upheld where although there was evidence which, if accepted, would justify a conviction, it appeared that that evidence was unreliable, unsafe or unsatisfactory for the purposes of conviction. In this matter, proceeding from that proposition of law, what the defence submits is that the evidence of the first State witness, Senage Nui, was shown to be totally unsatisfactory, and that the evidence of identification of the second witness, Ruldonge Wanga, was shown to be based only on few seconds’ opportunity of observation, constituting no more than a fleeting glance. He then submitted that the decision of the Supreme Court in John Beng -v- The State 1977 PNGLR 115 and cases there cited, especially Raymond Turnbull & Ors -v- R (1976) 63 CR. App. Reps 132, mean that I must conclude that the quality of the identification evidence of the second state witness was too poor to ground a conviction in the absence of other supporting State evidence. Finally, he submitted that since the only other State evidence was that of the first witness which was totally unsatisfactory, the record of interview of the accused which contained no admissions, and the Baiyer River Police Station occurence book which was silent as to any facts relating to the report of the robbery, the only conclusion to be arrived at is that no such other evidence exists.

In answer the State said that the evidence of the first witness Niu was not totally unreliable and could be taken with the evidence of the second witness (Manga) that in any event Manga’s observation and identification of the accused were sufficient; and the fact that he (Manga) identified the accused to the police at the time of arrest was “other evidence” consistent with guilt to be added to the observation and identification evidence and strengthen it. At my suggestion the State also submitted that John Beng’s case and the authorities there discussed do not absolutely require that where the observation which is the foundation of the identification amounts only to a fleeting glance it is insufficient. Rather the State submitted that the true effect of John Beng’s case in laying down the law for Papua New Guinea was simply that the tribunal of fact should be aware, and should caution itself, that it is dangerous to convict on such identification evidence alone, but that if that caution is properly allowed for, if the tribunal still feels no reasonable doubt of guilt it can and should convict.

It can be seen that these arguments in the present case throw up these questions:

(i) ټ&##160; I60; Is the the evidence of the witness Nui totally unsatisfactory

(ii) ټ&#If so, so, is thes the identification evidence of the witness Manga based on a &;fleeglance” so ; so as toas to require other evidence to support it.

(iii) Is any other such evidencidence in the case.

(iv) Does eci don ii John Behn Beng’s case and the authorities there citen thatherenly ating glance for a witness to s to rely rely on toon to base base his identification and no other evidence to support a conclusion of guilt, then there must automatically be an acquittal.

Some of these questions are interrelated. If (i) were answered in the negative, then even if (ii) were answered in the affirmative, the evidence of Nui could be used to bolster the evidence of Manga. Quite apart from (i), if (ii) were answered in the affirmative, then if there were evidence to give an affirmative answer to (iii), that evidence could be used to bolster the evidence of Manga. These are questions of fact on the evidence. Question (iv) is a question of law which certainly governs the overall approach to the case and upon which the validity of the second part of (ii), as to the requirement of other evidence, depends.

To answer these questions it is necessary to refer fist to the evidence.

The witness Nui said that he recognised the accused at the robbery. He said that he had known tha accused for some time and knew his name and what he looked like. He said when he reported the robbery he told the police that the accused was involved, and told them that he knew the accused. Obviously those matters would constitute vital evidence from the point of view of the police and would be matters the police would in any event inquire about. He said he made a statement to the police which he signed after it was read back to him and that it contained everything he had told the police. He was cross-examined on the affidavit he swore for the purposes of the committal proceedings which was tendered as exhibit 1. In it there was no mention by him of the names of any of the robbers, or that he knew them, and not even a physical description of any of them. He then altered his evidence to say that although he well knew the accused he did not mention that to the police because the police did not ask him. Finally he said that when he first reported the matter to a single policeman at Baiyer River Police Station he said he knew the accused and that the accused was one of the robbers, and said that the policeman made notes but did not ask him to sign a statement, whereas later at Mt. Hagen C.I.D. office he made a signed statement but was not asked about the identity of the robbers and so did not mention it. Added to this, it is to be noted that Nui was the driver of the coffee company vehicle, and that in the accused’s record of interview (Q20) the police did not suggest to the accused that the driver had identified him, only one of the crew of the vehicle. Finally the occurence book from Baiyer River Police Station curiously contains no details at all of the reported armed robbery and so does not support the witnesses final version that he told the policeman there, who made notes, that he knew the accused and saw him at the robbery.

In the face of these features of Nui’s evidence, although he had a good demeanour in the witness box, I think his evidence is totally unsatisfactory and cannot be relied on in any way. It seems to me that the affidavit he swore is consistent only with his having no relevant knowledge of the identity of the accused, and that once the accused was arrested and committed the police should have conducted an identification parade to see whether he could be identified as one of the robbers by Nui, or less satisfactorily, relied on a possible identification in court. I cannot believe that the police would be so incompetent as to leave out of his affidavit such vital material, and the only conclusion I can reach is that for some reason this witness improved his evidence beyond its proper limits when he gave evidence.

The answer to the next question as to whether the observation of the robbers by the witness Manga amounted to a fleeting glance only is easy to give. The only fair conclusion on the evidence is that it must have been. He said he saw three gunmen running up to the vehicle but could recognise the accused only when he came close. It is clear that on getting close to the vehicle the gunmen fired two shots, the second of which hit the witness, and that these events took place in a very short span of time. After the second shot the witness agreed that he saw nothing further.

Likewise the answer to the third question is easy. The evidence of Nui is, I have said, totally unsatisfactory. The record of interview does not contain any admissions and the occurence book is silent. That the witness Managa may have pointed the accused out to the police at the time of arrest is an event which depends on his earlier identification of the accused and cannot be additional evidence in support of the alleged identification. Therefore there is no other evidence than the fleeting glance of Manga that the State can rely on.

This brings me to the legal question as to the effect of John Beng’s case and the other authorities. In approaching this question I must confess some repugnance for the defence submission that the proper answer is that if there is only a fleeting glance that will always be insufficient for a conviction. Such an approach seems to me to lay down a rigid rule as to how a particular issue of fact is always to be decided, which leaves no room for the tribunal of fact to make what should eventually be a factual assessment. However on reviewing the authorities I think there is no escape from the conclusion that in John Beng’s case the Supreme Court did set forth the ratio decidendi of the decision in the English Court of Criminal Appeal in Turn bull’s case, which in effect says that even if the witness knew the accused, so long as his identification at the scene of the crime (or elsewhere) was based on no more than a fleeting glance there should not be a conviction unless there is other evidence in support of it as well. The Supreme Court said that the decision in Turnbills was not materially different from the Victorian decision of R -v- Preston [1961] VicRp 115; 1961 V.R. 761 and I think the Supreme Court must be taken to have approved of both decisions which are indeed very similar, although possibly Preston goes no further than saying that a strong warning to the tribunal of fact is required where the identification evidence is not compelling. As I have said, I would favour this latter approach because it leaves the tribunal of fact to decide the question of identification as a factual matter on the evidence, not restricted by a rigid principle of law. I concede, however, that Turnbull and its apparent acceptance by the Supreme Court in John Beng’s case do provide strong support for the defence submission in this case.

I would prefer not to decide what the effect of John Beng’s case is in the present circumstances and I will refrain from answering the final question. It is not in this case necessary to do so because whether I take the view that as a matter of law I cannot convict on the evidence of the eye witness Manga, or only that I should approach his evidence with great caution, I think the result in this case is the same. His evidence is not sufficient for a conviction and although I stress that my decision does not mean that the accused is in fact innocent, merely that the State has not made out a case against him to the required standard so that he is legally to be regarded as innocent, I uphold the no case submission, acquit the accused and discharge him.

Lawyer for State: Mr. Norum

Lawyer for Accused: Mr. Poka