Ono v The State [2002] PGSC 10; SC698 (4 October 2002)

SC698

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 7 OF 2002

Between:

JIMMY ONO
Appellant

And:

THE STATE
Respondent

WAIGANI: HINCHLIFFE, SEVUA, KANDAKASI, JJ.
2002: 1st August

4th October

APPEAL – Appellant obliged to show identifiable error to allow interference of trial judge’s discretion – No identifiable error demonstrated – Appeal dismissed.

CRIMINAL LAW – Identification only issue for trial – Need to warn of dangers of mistaken identity – Appellant positively identified by reference to face and clothing – No error in learned trial judge’s treatment of evidence and finding – No basis to interfere with trial judges findings - Appeal dismissed as having no legal or factual basis.

Papua New Guinean Cases Cited:
Ian Napoleon Setep v. The State (unreported judgement delivered on 18/05/ 01) SC666.
The State v. Vaii Rocky Maury (unreported judgement delivered on 20/07/01) SC668.
John Beng v. The State [1977] PNGLR 115.
The State v. Marety Ame Gaidi (unreported judgement delivered 01/08/02) N2256.
David Kandakason v. The State (unreported judgement delivered on 07/07/98) SC558.
The State v. Amoko-Amoko [1981] PNGLR 373.
The State v. John Kasaipwalova (1976) N80.
The State v. Kindung [1996] PNGLR 355.
The State v. Raphael Kimba Aki (unreported judgement delivered 26/01/01) N2039.
Abiari v. The State [1990] PNGLR 250.
The State v. Max Charles & Ors (unreported judgement delivered on 17/10/01) N2187.
The State v. John Michael Awa & Ors (unreported judgement delivered on 26/06/00) N2012.
The State v. Vincent Malara (unreported judgement delivered on 20/02/02) N2188.

4th October, 2002

BY THE COURT: On the 19th of December 2001, The National Court found you guilty on a charge of armed robbery. That was after a trial where the only issue for trial was identification. The trial judge accepted the State’s evidence on that issue and proceeded to convict you. You are now appealing against that decision.

The grounds of your appeal are as follows:

"1). The conviction is arbitrary and baseless on the grounds that the prosecution failed to prove the elements of the charges as laid by the State.

2. According to the provisions of the criminal evidence, which requires proof beyond reasonable doubt, my conviction transpired into a scenario where there was more than ample doubt and where there is no reasonable evidence which could prove my involvement in the commission of the alleged crime.
   
3. Despite the fact that there were obvious inconsistencies and expression of doubt by the prosecution witnesses, the prior bench clerk erred in finding me guilty on these charges as laid by the State."
   

These grounds could be summarized in this way. The learned trial judge had no factual or legal basis to be satisfied beyond any reasonable doubt that you were involved in the robbery. This was because the evidence called to establish that you were involved in the robbery had inconsistencies and uncertainties.

The State argues that the learned trial judge did not fall into any error. It therefore argues that your appeal has no merit and as such it should be dismissed.

Issues

This presents two issues for determination. The first is whether the learned trial judge had the factual and legal foundation to find you guilty on the required standard of proof beyond reasonable doubt? The second one is whether there were inconsistencies in the prosecution’s evidence sufficient to cast serious doubts on the evidence called to establish you as one of those involved in the robbery? These issues are closely related. We will therefore deal with them as one.

Before proceeding any further we remind ourselves of the settled law that, this Court will not readily interfere with a trial court’s finding. The only exception to that is, where this Court is satisfied that a learned trial judge fell into some demonstrable error which has the effect of vitiating the trial judge’s discretion. For examples of authority on this see Ian Napoleon Setep v. The State (unreported judgement delivered on 18/05/01) SC666 and The State v. Vaii Rocky Maury (unreported judgement delivered on 20/07/01) SC668.

The issue for trial in this case was identification. Therefore all the other elements of the charge of armed robbery stood undisputed. That meant that the State did not have to call and or produce any witnesses to give evidence in relation to those aspects. Consequently, it was not necessary for the trial judge to determine whether or not the other elements of the charge against you were established beyond any reasonable doubt. It only had to focus on the issue for trial. If the evidence for the State on that showed you being involved in the robbery without a shadow of doubt, you could be found guilty on the charge presented by the State against you. So what was the evidence before the learned trial judge regarding your identification?

A Mr. Ipou and a Pascal Aivarai were the relevant witnesses. They gave evidence on the issue for trial. They were part of the victims in the robbery. Their evidence was that, they were out on the verandah of a L40 type house on high post in the evening of 3rd of February 2000, having their dinner. It was already dark but they sat under a fluorescent light. So they were able to see clearly any object in the immediate vicinity and as far as the light could permit. As these witnesses were having their dinner, you and your accomplices, numbering about 4 men in total, came up the ladder of the house leading into the verandah and held them up at gunpoint. Although, a mask covered your face, the witnesses were still able to recognise you by your clothing, build and voice.

They also testified that they both knew you well as early as the 1970s and 1980s as well as the 1990s but the more recent contacts were within six weeks prior to the robbery. They testified that their knowledge of you was through, personal contacts between them and you during those period. During that period they testified to having exchanged short casual conversations with you, particularly, greetings. They also stated that they knew your father well as an Aid Post Orderly then working in Taipini. Given these, they said you were not a stranger to them.

At the time of the robbery you went to where the witnesses were seated and having their dinner. From there you pointed a factory made gun at one of the witnesses and ordered him to give you the money. He did not immediately comply with your instructions and that made you to issue further orders. As you were leaving the scene of the crime after having stolen a total of about K817.00 and other properties from the victims, Mr. Aivarai called out to you and your accomplices and said he had recognised you.

The witnesses were able to recognise you by your build, voice and your clothing, based on their knowledge or contacts with you.

At the trial, you decided to give an unsworn statement from the dock. Your statement appears at page 57 of the appeal book. In that statement, you denied any acquaintance or relationship of any sort with the State’s witnesses. You also stated that, you were a small boy when your father was working in Tapini in 1984 and 1985. In the ultimate, therefore you maintained your plea of not guilty by stating that you were being falsely accused for a robbery you did not commit. Yet you did not give any evidence of an alibi or why the witnesses came forward and gave a false testimony against you.

On this appeal, you in effect repeat what you told the Court below in your unsworn statement and you tried to make a case out of it. You have also tried to go even further from what you told the Court below by claiming that the State witnesses and the police have conspired against you. However, you do not provide any reason for such a conspiracy against you. Besides, you did not speak of any conspiracy in the Court below. You are therefore claiming the conspiracy issue for the first time in this Court.

The learned trial judge in finding on the issue for trial in favour of the prosecution reasoned as follows at page 66 of the appeal book after accepting that Mr. Ipou and Mr. Aivarai’s evidence was the relevant evidence (page 54 of the transcript). He said:

"I also remind myself of the dangers inherent to identification evidence. I accept the evidence of the State witnesses. The evidence of identification of the accused is overwhelming. They both know the accused. The accused is no stranger to them. I do not place much weight on their evidence that by reason that they had known him in Tapini. I accept Mr. Siminji’s submission that given the time difference such evidence becomes insignificant. I accept their evidence of identification and recognition that since their arrival in Bereina they had come to know the accused. Whilst accepting that the men were masked I cannot ignore the fact that the offence was committed under favourable conditions where the opportunity to make any observations cannot be compared to a fleeting glance. Here the accused was within close proximity to Mr. Ipou when he was giving out the command. Mr. Ipou recognised his voice, his physical build and place all this to a face, the face of the accused. He had seen the accused a day before the robbery, voice identification is admissible where it is known and recognised by the victim. Case of State v. Daniel [1988-89] PNGLR 580. In this case there is more than voice identification."

The law on identification evidence is settled. The often-cited authorities are the judgements of this Court in John Beng v. The State [1977] PNGLR 115. Just recently Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (unreported judgement delivered 01/08/02) N2256, in these terms at page 5 to 6 of the judgement:

"1. It has been long recognised that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:
   

(a) a convincing witness may be mistaken; or

(b) a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;
   
4. There should be a specific direction to closely examine the circumstances in which the identification was made;
   
5. Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;
   
6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
   
7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
   
8. There should be an acquittal if the quality of the evidence is bad."
   

Although, the learned trial judge did not refer to the relevant judgement or authorities on point in his judgement, he did in fact consider those principles and applied them. He warned himself in accordance with these principles, closely examined the circumstances in which the identifications were made and accepted the quality of the relevant evidence and the source from which they came. He accepted the prosecution’s witnesses and their evidence and acted on them. We can not see how the learned trial judge could have fallen into error in those circumstances.

This Court in David Kandakason v. The State (unreported judgement delivered on 07/07/98) SC558, held in effect that, once a decision has been made on the credibility of witnesses and whose evidence is acceptable, further considerations as to the treatment of the evidence may be futile. That was in a case, which also involved the issue of identification but in relation to a wilful murder charge.

In this case the learned trial judge after considering and applying the principles on how to treat identification evidence, decided also to accept the evidence of the witnesses for the State. There was no evidence rebutting any of the State’s witnesses’ evidence. Your evidence consisted only of your unsworn statement from the dock.

It is a well-accepted practice that little or no weight can be placed on any unsworn statement from the dock from an accused person, in response to a charge and sworn evidence against him. Some of the cases representing this practice are; The State v. Amoko-Amoko [1981] PNGLR 373; The State v. John Kasaipwalova (1976) N80; The State v. Kindung [1996] PNGLR 355 and The State v. Raphael Kimba Aki (unreported judgement delivered 26/01/01) N2039.

In your case, you presented no sworn evidence to rebut the sworn evidence against you. You were only prepared to give an unsworn statement. Whilst that was your right to do so and that no inference of guilt can be drawn against you because of that, it means that you were left with sworn evidence against you without any rebuttal from you. You were not able to present any reason to compel the trial judge not to accept the sworn evidence against you. Now on appeal you argue that the witnesses fabricated their evidence against you because of a conspiracy between them and the police. You also argue that the witnesses’ claims of knowing you from the days of you being with your father in Tapini could not be right by reference to your age and when you entered primary school.

A careful perusal of the appeal book and the evidence, before the trial Court fails to show any factual basis for your arguments. In relation to when you were born and when you started your primary school, you called no evidence on this aspect. The law is that only factual issues raised in the Court below can be raised on appeal except for fresh evidence with leave of the Court on the application of a party seeking to rely on such evidence: See Abiari v. The State [1990] PNGLR 250.

In your case, you have not applied for such leave. Also we can not be satisfied that the evidence in question, could be fresh evidence. This is because fresh evidence, is evidence not available at the time of the trial and that could not be secured at the time of the trial with the exercise of reasonable care. In any case, the learned trial judge accepted your argument that the witnesses’ knowledge of you during your times at Taipini could be unreliable. The reason for that was the time period that had lapsed since then and the fact that you had grown into a man. This was particularly in relation to the voice recognition. But the learned trial judge accepted the prosecution’s witnesses evidence of their prior knowledge and or contact between you and them during a period of six weeks they were in Bereina prior to the robbery. We can understand why the learned trial judge did that. Your childhood voice could not be similar to what you had at the time of the robbery. Hence, we find there is no basis for this argument and as such we dismiss it.

We note also that in your submission, before the learned trial judge, you did not argue against the other factors, which he eventually took into account to accept the identification evidence against you. The learned trial judge noted that there was sufficient lighting, the distance between you and the witnesses was close and that they recognised you by your build based on their prior contacts and knowledge of you. Consistent with your approach before the National Court you are not taking any issue on any of these. Hence, your identification with reference to these factors remains unchallenged.

Now moving on to the conspiracy issue, again you did not produce any evidence of it before the trial judge. You have not even mentioned it in any respect or context before the trial judge. You are therefore raising this issue for the first time before this Court. Again as noted you are not at liberty to do that unless leave of this Court has been first sought and obtained. As with the issue on your age and schooling, you have not made any application to call fresh evidence. Even if there was such an application we have not been made aware of what evidence, if any you have of the alleged conspiracy. For these reasons we also dismiss your argument alleging conspiracy.

This leaves us with the final issue of whether there were serious inconsistencies in the prosecution’s witnesses’ evidence so as to cast serious doubts as to their identification of you.

You, as the appellant, had the burden to demonstrate the serious inconsistencies and or uncertainties. Instead of showing where such inconsistencies and uncertainties exist, you only make submissions as to how part of what the witnesses said could lend support to your claim of innocence. For example, one of the first things you say in a question form is, if indeed the witnesses knew you and identified you, why were you not arrested the next day? Your own answer is that, because they did not know you and that you were not involved in the robbery, you were not arrested the next day.

The problem with this submission is that, it does not account for escaping and hiding as you were identified. It follows therefore that, because you were identified, you could not afford to stay around in the areas you would normally be expected to stay. Thus, rather than supporting your arguments, it renders support to the State’s case and now the National Court judgement that you were involved in the robbery.

Parts of your submission make reference to the witnesses’ placement of the date or times of their contact with you. They speak in terms of in the 1970s, 1980s and between 1992 – 1998. You try to make a case out of this in terms of the witnesses not being certain in their evidence and so therefore they were not certain in the rest of their evidence. As far as we can see, there was nothing wrong with the way in which the witnesses gave their evidence. Not many people remember precise days, dates and years. So it is common for people to recall events in the past in the terms the witnesses spoke of. Even if there was such uncertainty, we are not satisfied that this was serious enough to in turn cast serious doubts on the rest of the witnesses’ evidence.

You also try to make a case out for yourself based on the fact that, according to the witnesses, you were masked. You argue that recognition of you can only be possible by face and not by your build or parts of your body. This argument runs directly contrary to the large body of law that allows for convictions to be secured without the need for direct facial recognition. This body of law has developed in that way because of the simple fact that armed robberies and other offences do not necessarily get committed with the offenders fully exposing themselves for fear of being caught by the law. So the law has developed in the way it has and it has prevented possible chaos and a serious break down in law and order.

What this means is that your case is not the first time in which the Court has recorded a conviction on indirect identification of an offender. Recent examples of this are the cases of The State v. Raphael Kimba Aki (supra); The State v. Max Charles & Ors (unreported judgement delivered on 17/10/01) N2187 and The State v. John Michael Awa & Ors (unreported judgement delivered on 26/06/00) N2012.

At the end of all of this, we find that you have failed to demonstrate where and how the learned trial judge erred in finding you guilty on the charge of armed robbery. You claim there were inconsistencies and uncertainties in the prosecution’s evidence when there was none or if they were not, they were not sufficiently serious to cast any doubt on the evidence against you. We find that the learned trial judge did have the factual and legal basis to find you guilty in the way that he did. Consequently, we find that your appeal has no factual or legal merit. We are firmly of the view therefore that your appeal should be dismissed and we so order.

In passing may we add that, you are lucky that the Public Prosecutor has not appealed against your sentence of 11 years for robbery of a dwelling house at night at gunpoint. You have a prior conviction also for armed robbery and another for unlawful use of a motor vehicle following a robbery. The offence of armed robbery is on the increase in the country. So the Courts have been imposing sentences higher than 11 years. A very recent example of that is a sentence of 15 years by the National Court in The State v. Vincent Malara (unreported judgement delivered on 20/02/02) N2188, on a guilty plea by the prisoner who had only one prior conviction for arson.

It seems to be a trend these days for the Public Prosecutor not to appeal against sentences in some cases that are obviously low and have no relation whatsoever to the seriousness of the offence, more particularly for serious offences like, armed robbery, rape and murder. This in our view does not assist in the area of law and order and the community’s expectation that the law will appropriately deal with such offenders. The community expects the Public Prosecutor to prosecute such offenders and ask for tougher penalties to be imposed by the Courts. If the National Court fails in the first instance to impose such sentences, when the facts of the case does call for such sentences, then the onus is on the Public Prosecutor to appeal to this Court for an increase in the sentence to reflect the community’s wishes.
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Lawyers for the Appellant: Appellant in person
Lawyers for the Respondent: Public Prosecutor