State v Ape [2004] PGNC 71; N2703 (18 August 2004)

N2703

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO: 924 OF 2004

THE STATE

-v-

ALEX APE

Mendi: Lenalia, J.
2004: 10, 11, 12, 18 August

CRIMINAL LAW – Stealing – Guilty of not guilty – Trial – Criminal Code s. 372 (1)(10), Ch. No. 262.

CRIMINAL LAW – Stealing – Plea of not guilty – Trial – Identification Issue of – Principles applicable – Evidence of eye witness – Credibility of evidence of only eye witness – Timing – Possibility of incorrect identification – Identification – Dangers inherent – Warning on identification evidence.

Cases cited:

John Beng -v- The State [1977] PNGLR 115
Biwa Geta -v- The State [1988-89] PNGLR 153
The State -v- Natuai Tibone and Thomas Some (1982) N361 (M)
The State -v- Kabale Rau (1997) N1509

Counsel:

S.Kesno, for the State
P. Kapi, for the Accused

18th August 2004

LENALIA, J. Alex Api stands trial that on 15th day of August 2003 at Mendi town he stole a cash sum of K1,2000.00 the property of Mone Rawae. The offence charged is laid pursuant to s. 372 (1)(10) of the Criminal Code.

The State evidence came the victim and her husband who came to give oral testimonies to Court. Before the two witness were called a number of documentary evidence were tendered by consent and marked as follows:

- Pidgin version of the Record of Interview Ex. "A"
- English translation Ex "B"
- Statement by Sgt. Epra Piuk Ex "C"
- Statement by Constable John Sali Ex "D"

The record of interview contains no admissions and the accused denied knowing the victim nor seeing her on the date the offence was committed. The two statements by Detective Sergeant Epra Piuk and the one by Constable John Sali corroborate each other only on the point where the record of interview was conducted between the accused and themselves. Nothing further should be said about their evidence.

The victim’s evidence is that after she finished selling betelnut at the Mendi market, she hired two boys to escort her to her house. It is not clear from her evidence if each of the two boys was given K16.00 each. She named those two boys as Justine Pond and John Taim. The victim did not give any reasons why the two boys whom she had hired could not provide an escort right up to her yard. But her evidence is that coming up past the North Kagua junction, they proceeded further down with the two boys whom she hired left her near the Petroleum and Energy office and walked back toward the town side.

As the victim walked toward the small mini-market where betelnut is usually sold and as she was just walking into the fence, two men came from her back and one of them held her hands tightly against her body and another came to her side and cut her bilum (string bag) on her hand and snatched it and made off with it. Her evidence is in that bilum, there was a cash amount of K1,200.00.

She then shouted, giving an alarm, but the two robbers ran towards the airport then jumped over the fence and escaped toward Tuviri village. She then came to the Police Station where she reported the matter. After she returned, she asked her husband to accompany her to Tuviri village where they asked for the accused and someone told them that the accused was not there. They told the person whom they talked to that, the next morning they would come to see the accused.

The next day, they went to Tuviri village and asked for the accused. They were informed that, he had left for Hagen to see the famous Hagen Show. Soon after that husband of the victim Rawai Pombra (the second witness) took off to Mount Hagen. Thus witness had to hire another two boys to go with him to Hagen. In Hagen, they found the accused being drunk at the Mount Hagen Show Ground. After seeing the accused, he requested the police to arrest the accused. Police actually arrested the accused. When he was searched, no money was found in him. According to the accused, he only had K15.00 with him for his return bus fare.

The accused evidence is total denial and he said, during that day he was on duty at the Governor’s residence at Paga Hill (not in Moresby) in the Mendi town. That he was on duty until 5 pm that day. That after getting his salary, he went back to the village and went to various people whom he had outstanding credits and settle his credit accounts. He was a security officer and his salary was K140.00 per payday and by the time he settled his accounts, he had only K100.00 in his pocket.

The accused denied going to the Mendi main Market at Wara Magani. He denied buying any betelnut from the victim that afternoon. If there was a chance for him to buy betelnut from the victim, it would have been between 5:15 or even 5.30 pm and about 6:30 or 7 pm that day. The accused denied knowing the victim although he said in evidence that the victim comes from upper Mendi. It is not clear from that piece of evidence whether, the knowledge of knowing where the victim comes from was something known to him at the time he committed the offence or even prior to that date of something he only learnt during the trial when the State witnesses gave their evidence.

The accused also denied in chief and cross-examination that although, he knows Danny Zirok, he does not know him personally and all he knows is, he might be from Tari District and he might have been a student around about that time. The accused also said he knows about Simon Kupiri but what he seemed not to know is whether Simon comes from Tuviri village or not. That if he is from Tuviri, he could be from the other side. (which side is not clear)

I am thankful to the lawyers’ submissions on the issues involved on this trial. As both counsels have rightly pointed out, this case involves the issue of identification. The dangers of identification evidence are recognized in common law countries. In countries where a jury is engaged to determine that facts, the practice has been that a judge is required to give the warning to the jury about the nature of evidence before the Court. In Papua New Guinea, the warning about the dangers inherent in the application of identification evidence has been adopted in leading authorities.

The principles on identification evidence is settled in this jurisdiction in John Beng -v- The State [1977] PNGLR 115 and later in Biwa Geta -v- The State [1988-89] PNGLR 153. There are many more subsequent cases where such principles have been discussed and applied. The warning stated in the above two cases is that, a judge must warn himself or herself that where the State’s case relies substantially on identification evidence, the Courts should adopt certain warnings such as there is a possibility that a mistaken witness could be a convincing one and as well any number of witnesses could be mistaken. see also The State -v- Kobale Rau (1997) N1509.

A witness may testify that he knows the accused well or that he had seen him before, such witness may make mistakes about the recognition of the person who is accused.

The relevant passage of that warning is stated in Biwa Geta -v- The State (supra) at pages 160 – 161 in the following terms:

"In this case where the State relies on the correctness of identification evidence which the defence alleges to be mistaken, I must warn myself of a special need for caution before convicting in reliance on that identification. I note in terms of John Beng -v- The State [1977] PNGLR 115 or R -v- Turnbul [1976] 3 All. ER. 549, the possibility that a mistaken witness could be a convincing one and that a number of witnesses could be mistaken. I remind myself of the need to examine closely the circumstances of the identification made by each witness. For example, how long did the witness have the accused under observation? If only occasionally, had he any special reason for remembering the accused? How long had lapsed between the original identification and the subsequent identification to the police? How long had lapsed between the original identification and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, I remind myself that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of identification evidence. When the quality is good, the value and strength of identification evidence is enhances. When the quality of identifying evidence is poor – that is, a fleeting glance or a longer observation made in difficult conditions – the evidence is of little or no value".

I adopt the above warnings and apply them to the circumstances of the case before me and I further say that, in a case like the one before me where the State has relied on one single eye witness, I must be extra cautious in how I treat the evidence of witness Rawae Mone. The accused is charged with an offence involving the class of evidence, which may frequently lead to unsafe and unsatisfactory convictions unless the evidence is somehow corroborated.

The danger of convicting an accused person without proper warning has led to unsafe and unsatisfactory convictions prompted the English Criminal Law Review Commission in their Eleventh Report at paragraph 196 where the Committee made the following remarks.

"We regard mistaken identification as by far the greatest cause of actual or possible wrong convictions. Several cases have occurred in recent years when a person has been charged or convicted on what has later been shown beyond doubt to have been mistaken identification. In some cases the actual offender has afterwards admitted his guilt. Convictions have also been quashed because of doubts as to the correctness of an identification. Some of these cases have naturally caused great public disquiet ------. We regard this as one of the most important matters with which we have been concerned".

(see Cases and Materials on "EVIDENCE" by P.K. Wright C.R. Williams at page 31)".

The fundamental rule governing the admissibility and applicability of a piece of evidence is that it must be relevant to the circumstances of the case before the tribunal. Before this Court, the victim has given evidence that, she saw the accused cut her bilum. It must have taken a lot of courage for an unmasked person like the accused to cut the victim’s bilum. Her evidence shows that the man who held her from her back was masked while the accused was not at all masked.

Under a stealing situation or an armed robbery as the circumstances of this case seems to show, that act may have been committed in the shortest possible time. A number of factors affect the State’s case. First there is no evidence by the victim how she came to know the accused. It may be the case of recognition as submitted by Mr. Kesno. The accused denied knowing the victim although he said, she comes from Upper Mendi.

Core witness such as Simon Kupiri and Danny Zirox had not been called the latter was said by the victim to be the one who gave her the bilum which had been cut sometime after the incident. The same person was to make an incriminating statement against the accused and obviously, had those witnesses been called would be given valuable corroborative evidence.

Simon Kupiri is supposed to be from Tuviri village just on the outskirts of the Mendi town across the Mendi River. He was the one who went with the husband of the victim to Mount Hagen where they arrested the accused and placed him in police custody.

I agree with Mr. Kesno, that the issue of close proximity and there was body contact would have given the victim a lot of opportunity to observe who her attackers were. However, how credible is the victim’s evidence on the issue of identification is another issue. I find from the evidence that the incident occurred in a very short space of time and because the victim was attacked from her side as well as from her back, in my view, she might have not seen the person attacking her from her side properly.

As to how credible is the victim’s evidence that, when she came to the police station in Mendi and reported the stealing to the Police and at the same time gave the name of the accused is questionable and no evidence was given to confirm that part of her evidence.

I must therefore conclude that all the issues I have raised here go toward the quality of identification evidence. And as was said in Biwa’s case, when the quality of identification is good, the value and strength of identification evidence is enhanced. I must conclude that the victim observed her attackers in a "fleeting glance" and therefore I must find the accused not guilty. His case stands dismissed and he is discharged and his bail monies shall be refunded to him.
_____________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor