State v Among [2007] PGNC 11; CR 719 of 2003 (21 May 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 719 of 2003

STATE

v

HENRY AMONG

Kokopo: Lay J.
2007: 11, 12, 14 and 21st May

CRIMINAL LAW – identification - identification parade - instructions to witness - dangers of corrupting witness's memory.

PNG Cases Cited
John Beng v The State [1977] PNGLR 115.
State v Thomas Some (1982) N366 (M.)

References
Criminal Law and Practice of Papua and New Guinea, 3rd edition

Facts
The accused is charged with two counts of armed robbery. The only evidence against him is the evidence of one eyewitness who had a good opportunity of observation. However, at an identification parade the witness was told that the suspect was in the parade.

Held

1. a witness should not be told that a suspect is in an identification parade;

2. there is no way of determining whether or not the witness’s memory had been corrupted by the knowledge that a suspect was in the parade;

3. it is unsafe to rely on the identification made in those circumstances when there is no other evidence to support it.

Counsel
T. Ai, for the State
T. Potoura, for the Accused

DECISION

21 May, 2007

1. LAY J.: About 7 a.m. on 8 October 2001, along the Kabagap/Tokua Road, Kokopo a white Mazda utility was held up by three men at gunpoint and a vehicle stolen. About 9 a.m. on the same day three men held up the Rabaul post office, Vunapope at gunpoint and stole some cash. One of the men was holding a shotgun he rested on the counter. They then fled in a white Mazda utility.
   
2. On 26 October 2001, the accused was standing in a police identification parade at Kokopo police station and two employees of the Rabaul post office pointed him out as being the man holding the gun during the robbery.
   
3. The accused was charged first, with theft of the vehicle and secondly, the robbery at the post office.
   
4. The accused says he was not there at the post office, and did not take part in the theft of the motor vehicle or the robbery of the post office.
   
5. The issues arising from the trial are:
   
   1. did the witness have sufficient opportunity to see the gunman in circumstances which would make it safe to accept her identification of the accused;
   2. was the identification parade tainted by any conduct prejudicial to fairness for the accused;
   3. is there any evidence on which it would be safe to convict the accused of the first count, robbery of the vehicle.
      
6. The State called Dorothy Dapika, an employee of many years standing at the post office. Mrs Dapika said she had been working in the mail room and came out and was standing behind the counter. She noticed a man standing in the corner of the public area. A Filipino customer came in. A few minutes later the man in the corner came forward produced a shotgun and laid the barrel on the counter. He pointed the gun at Mrs Dapika and the other two tellers and told them to stand still. Two others came in, jumped over-the-counter, pulled out the drawers for the three counter offices and collected money which they put in a bag. While they were doing that the man with a gun knocked the Filipino man to the ground and removed his wallet. The robbers then went outside, got on a white Mazda vehicle and left. Later Mrs Dapika attended an identification parade at the Police Station and identified the accused, Mr Among as the person holding the gun.
   
7. I have carefully considered all of the evidence and counsel’s various submissions and have come to the conclusion that this case can be decided on only one issue.
   
8. The law is that a witness should never be told that a suspect is in the identification parade: See State v Thomas Some (1982) N366 (M.) Kidu CJ. One of the reasons is simply that, the witness may see someone in the identification parade with some features that they recall, but they have a real doubt which would prevent positive identification. If that person is the only one in the line-up with those characteristics, and the witness believes that the suspect is in the line-up, the witness can easily persuade himself that the "possible", identification, is a definite identification. And of course once the identification is made, usually the next time the witness sees the person identified they are in the dock and the witness is in the witness box. This only confirms to the witness that they have made the right identification.
   
9. The psychology of memory and identification is very complex. Psychologists have repeatedly demonstrated how easy it is to corrupt memory and to fool recollection of events and people. An identification parade is a double-edged sword. Properly conducted, it is strong evidence of the proper identification of the accused. But any error in the conduct of the identification parade raises the possibility of corrupting the recollection of the witness and of thus devaluing what might have otherwise been a very good opportunity of observation.
   
10. In the standard police form, which is used as a guide by the officer conducting the identification parade, and which was used in this case, the officer is instructed to advise the witness that " one or more of the people who committed the crime of... may be among the people on this parade." Inspector Kusab, said in cross-examination that he told the witnesses that "a suspect is in the identification parade".
    
11. I consider that the opportunity that Mrs Dapika had to observe the gunman was good. However, the prospect remains that her memory has become contaminated by the incorrect instruction from the police officer leading to identification of an innocent man who happens to have some of the facial characteristics recalled by the witness. There is no way of being certain beyond reasonable doubt that such a situation has not arisen, that the witness has identified someone with some of the characteristic she recalls, because she has been told the suspect is on the parade. It is a situation of identification of a complete stranger and there is no other evidence which tends to confirm the identification.
    
12. In those circumstances, I do not think that it is safe to rely solely on the eyewitness identification. I am therefore not satisfied that the State case has been proven to the proper standard. I find Mr Among not guilty on both counts.
    

___________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner