Beng, The State v [1976] PNGLR 471 (13 October 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 471 - The State v John Beng 

[1976] PNGLR 471

N65

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN BENG

Waigani

Frost CJ

6-7 October 1976

11-13 October 1976

CRIMINAL LAW - Evidence - Identification - Dangers to be borne in mind in accepting evidence of identification - Single witness - Relevant matters for consideration - Particular circumstances.

EVIDENCE - Identification - Dangers to be borne in mind in accepting evidence of identification - Single witness - Relevant matters for consideration - Particular circumstances.

On the trial of an accused on a charge of unlawfully wounding a young woman, the identification of the accused (who denied responsibility) by the young woman, was the only real matter in issue.

Held

(1)      Where evidence of identification is relevant, the court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the court.

R. v. Preston [1961] VicRp 115; [1961] V.R. 761 at p. 762 adopted and applied.

(2)      Where the identification relied upon is that of a single witness it is proper to be mindful that the identification “was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice”, and the Court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.

R. v. Preston [1961] VicRp 115; [1961] V.R. 761 at pp. 762-763 adopted and applied; R. v. Wright (No. 2) [1968] VicRp 17; [1968] V.R. 174; R. v. Boardman [1969] VicRp 17; [1969] V.R. 151; Reg. v. Long (1973) 57 Cr. App. R. 871; The Queen v. King (1975) 12 S.A.S.R. 404 and Leary v. The Queen [1975] W.A.R. 133 referred to.

(3)      Being satisfied that the evidence of the single witness, the young woman, was both truthful and accurate, and mindful of the inherent dangers, it could be said in the circumstances that the accused was criminally responsible for the attack upon the young woman.

Trial

The accused was charged upon indictment with unlawfully wounding a young woman, and pleaded not guilty. The only matter at issue in the trial was the identification of the accused as her assailant, by the young woman concerned.

Counsel

JP Edge for the State

CF Wall and GC Lalor for the accused

Cur. adv. vult.

14 October 1976

FROST CJ: The accused is charged upon indictment that on 26th June, 1976 in Papua New Guinea he unlawfully wounded a young woman, Miss Jenny Jee, to which he pleaded not guilty.

It is not disputed that on the late afternoon of that day, a Saturday, Miss Jee, who is a bar attendant employed at the Bulolo Bar of the Papua Hotel, Port Moresby, whilst alone in the bar was attacked by a man who struck her twice on the head, each time with a bottle.

The only issue in the case is as to whether it has been proved that the accused, who was employed as an apprentice chef at the hotel, was the assailant. He has throughout denied responsibility.

The Bulolo Bar is situated on the first floor of the hotel. For its purpose it is rather a small room, fitted along three walls with raised tables at which customers sit on high stools. The bar, which is placed along one wall with a narrow opening to the room on that portion of the bar nearest the door, at its nearest point is about twelve to fifteen feet to the door.

Whilst the bar is fairly well lit with fluorescent strips the lighting of the rest of the room is dim. There is a window in the door through which it is alleged the accused looked before coming into the room. It is placed in a rather high position from the floor and the full face can only be seen from inside the bar if a man outside looking in from the hallway were of average height — which the accused certainly is — and raised himself on his toes.

The facts of the case are that after opening the bar at about 4.00 p.m., Miss Jee had as her only customers two ladies who sat at the table behind the door. In this position they could not be seen by anyone looking through the window or in the act of entering the room because the table is behind the door as it opens. One of these ladies, Mrs. McInnes, who was called as a witness, said that she and her friend arrived at the bar shortly after 4.00 p.m. and left about 5.00 p.m., and there is no reason to doubt this evidence.

It was during this period that the assailant first entered the room. Miss Jee said she saw the accused’s face at the window, from below the mouth up, looking into the bar and around the room so far as he could see. He did this for some little time before coming into the room. She then recognized him as an apprentice chef at the hotel whom she had seen once before on a pay-day as he came from the dining room into the foyer where the staff were waiting to receive their pay. She knew all the staff working there and was told that he was an apprentice cook after inquiry of another member of the staff. She was sure that the accused was the man. She said that the accused was wearing long trousers, dark in colour. She had no recollection as to the colour of his shirt. The only physical characteristics she mentioned were that he was a Highlander of light skin and typically short hair. She was able to say he was a Highlander because she was born in Kavieng and has lived most of her life in Papua New Guinea.

Having entered the room he came towards her at the entrance to the bar and, according to her evidence, said the single word “apron” whilst gesturing with both hands about his waist, indicating what he was seeking. Miss Jee told him the housekeeper was not in that day, she did not look after aprons, and he should go to the ironing room and get one there. Both the housekeeper’s room and the ironing room are on the first floor, the housekeeper’s room being nearly opposite the bar. The man then turned and left. She said the same man returned about ten or fifteen minutes later after the two customers had gone. At this time she was turned away from the bar and did not notice him until he was inside the bar. He walked, she said, in haste, to the opening of the bar, and came behind the bar where she was standing. They were thus standing face to face. Being somewhat scared she asked, “what do you want”. It was significant, as will appear, that he took so long to answer that she said she did not know whether he was scared or anything. He then said, “mi laikim yu”, and at the same time reached for a cognac bottle which was on a shelf behind the bar. Raising it above his head he then hit her on the forehead. The bottle was shattered and the contents were spilt upon her. As she fell to the floor the man grabbed the jeans she was wearing, causing them to be torn down the seam near the fly, and also in a shorter tear near the waist. She began to scream.

At this stage she was covered with blood and cognac. With her back turned to him as she picked herself up the man hit her again, this time with another bottle, on the back of the head. Apparently it was her continued screams that caused him to flee. It was the Manager, Mr. Newman, who, hearing her screams from the floor below, ran up the stairs to her aid and who then made arrangements for her to be sent to hospital by ambulance and for the police to be summoned. Mr. Newman fixed the time as 5.30 p.m. or 5.35 p.m. and again there is no reason not to accept his estimate of time.

Later that night, having apparently told the police that it was one of the apprentice chefs who was responsible, the accused and the other apprentice chef, Jack Paia, were taken to the hospital and placed together before Miss Jee’s bed. On being asked to identify the man who attacked her she at once indicated that the accused was the one responsible. However, after lengthy questioning, the accused was taken home. On Wednesday, 30th June, 1976, at the Boroko Police Station a record of interview was taken and the accused charged and taken into custody.

Two days later an identification parade was arranged at the Boroko Police Station and the accused was asked to take part. He was not told of the purpose. Dubious as the effectiveness of any parade could be after the accused had already been placed before Miss Jee, it was aborted by the accused’s action when she approached with Sub-Inspector Hairai. What happened was that the accused jumped out of line and, according to Miss Jee, said, “take her away, I don’t want to see her again”. But the evidence is conflicting because the Sub-Inspector said that the words spoken by the accused were, “I know this woman, we work together”. And later in evidence by the accused his account was that he told the officer-in-charge, “if you want to conduct an identification parade it is better if you line up all the employees of the Papua Hotel with me and it will be a fair go”.

Miss Jee in cross-examination was questioned about estimates of the times she fixed, which were different from those stated by Mrs. McInnes, and also in relation to the interval between the accused’s visits which she said was ten to fifteen minutes. But I do not think this criticism, which relates to a common failing in this country, is so material. What is more important are certain statements made by her to the police on the Saturday night and to Sub-Inspector Hairai a few days later, from which it appears that the conversation with the man when he first came into the room was somewhat longer than the few brief words she gave in evidence. I accept that the man may have said that he wanted an apron and asked for the lady, meaning the housekeeper, before he was told to go to the ironing room, and he then said, O.K., and when the man returned he may also have repeated a second time the Pidgin words “mi laikim yu”, which were the additional remarks alleged.

The point of this evidence is that the accused has a stutter or speech defect which on hearing him for any extended period is quite marked. Miss Jee admitted that she made no reference to any such defect in her statement to the police nor was she aware of it. In evidence she said that the man had difficulty in getting out his words but she thought he was scared. As to the words, “mi laikim yu”, he spoke these quickly.

The other witnesses as to identity were Mrs. McInnes and Jack Paia. Mrs. McInnes saw the man when he came into the room and walked across to the bar. She noticed him making gestures with his arms about his waist but did not hear any conversation. She thought the words spoken by both went further than the few words deposed to by Miss Jee. She did not have the same opportunity of observing the man as Miss Jee for his back was turned to her. She doubted whether she could recognize the man again, and, asked whether he was in Court, said she would not like to say. She did not know. The two significant matters raised in cross-examination were as to the dress of the man, whom she thought was wearing shorts and not long trousers — when the accused gave evidence he said he was wearing long trousers, evidence which was not of course contested by the State — and also in relation to some observations she was asked to make outside the Court, and apparently in the presence of counsel, on the day that she was called to give evidence. She was asked by the State Prosecutor to look at the accused and also Jack Paia and to indicate whether either was familiar. Her answer was that she could not be sure but she felt that Jack Paia would fill the bill better, the reason being that he was a more typical Highlander. In fact the two men do not resemble each other, the accused’s skin is lighter and Jack Paia is of different build.

Jack Paia’s evidence did not take the State case any further than a denial that he was the one responsible. His evidence was that he worked in the kitchen until 5 o’clock, rested between 5.00 p.m. and 5.15 p.m. in a nearby bar of the hotel and when he returned to the kitchen he did not notice the accused until he saw him again at about 6 o’clock.

However, a curious piece of evidence in the case does involve Jack Paia and it is convenient to mention it now. It was put to him in cross-examination that at about 5 o’clock he went into the foyer and asked Miss Whiting, who was later called on behalf of the accused, for the keys to the housekeeper’s room so that he could obtain an apron. This he denied. However, I would accept the evidence of Miss Whiting that in fact he did go to the foyer, make the request which she was disinclined to comply with, and that she gave him the keys only after he asked for them again in a rather aggressive manner. It was shortly afterwards that she heard Miss Jee’s screams. She later noticed the keys placed again in the appropriate drawer but she was unaware how the keys were returned to the office.

This piece of evidence was relied upon by the defence to indicate that Jack Paia may have been in the vicinity of the bar at the time of the attack, and that he accordingly had the opportunity to commit the offence.

At the close of the State case Mr. Lalor submitted there was no case to answer, but I refused the application and did not consider it necessary to give detailed reasons.

The accused was called to give evidence and he gave an account of his movements of that day. According to him he worked in the kitchen on the afternoon until about 5.00 p.m. when he left to go to the Moresby Hotel, following the accepted practice for the kitchen staff to take “half time”, as it is called, between about 4.30 p.m. to 5.30 p.m. or a little later, as a work break. He said he went on his own and returned on his own. At the hotel he drank four bottles of beer with two men from Kerema still employed at the hotel but who were not called to give evidence. When he returned it was about 6 o’clock. He denied going to the Bulolo Bar at any stage of the afternoon.

Apart from Miss Whiting, the defence called two of the kitchen staff as witnesses. Ronald George Wallace, the second chef, was in charge of the kitchen on the day in question, which he said was a busy day for there was a function to be held at night. There were at least 15 working in the kitchen. He recalled that the accused was present during the afternoon engaged in making sweets and he did notice him between five minutes to five and a quarter past five because the accused was using a mixing machine which Mr. Wallace was waiting to use. He fixed the time by estimating back from the time the police arrived, which he took as 5.30 p.m. He could not recollect seeing the accused after that and he said it was quite possible for the accused or any of the employees to have left the kitchen during the afternoon without him noticing it.

The other witness was Michael Nopi, from the Enga sub-Province and one of the cooks. He said he saw the accused in the kitchen at 2 o’clock when work began. The witness said that he was engaged in washing the floor later in the afternoon until ten minutes to five or five o’clock, when he went to the Moresby Hotel bar. Close to 5 o’clock, the accused was also scrubbing the floor but he did not know whether the accused was there when he, the witness, left. He noticed the accused come into the Moresby Hotel and he was still at the hotel when the witness left at about 5.15 p.m. He himself did not drink, he played snooker, but he noticed the accused with two other workers “with their four bottles” when he left. Later on he saw the accused return to the kitchen with the others who were there at the hotel. Possibly they came together or possibly they came at different times. He only saw them in the kitchen. He was unable to recall the time when he saw the accused back in the kitchen.

To enable me to understand the evidence a view was held of the Bulolo Bar and the relevant parts of the hotel premises including the kitchen. There are two sets of fire escape stairs, one of which is situated not far from the back door of the kitchen. The kitchen itself could not be described as a spacious room because it is divided and equipped with large tables.

The only relevant matters of law relate to the dangers of identification evidence which are well-recognized in common law countries. In practice the judge is required to give the jury an appropriate warning. Counsel for the accused referred to R. v. Preston [dxxxvi]¹, a decision of the Court of Criminal Appeal of Victoria which brings out very well the appropriate procedure in this type of case. Lowe J., giving the judgment of the Court observed that the warning “must depend upon the circumstances of the case before the court. There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the court” (at p. 762). Where the identification relied upon is that of a single witness it is proper that the jury should be informed that the identification “was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice”, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are “what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification” — at pp. 762-763. These considerations were applied in R. v. Wright (No. 2)[dxxxvii]²; R. v. Boardman [dxxxviii]³; Reg. v. Long [dxxxix]⁴; The Queen v. King [dxl]⁵; Leary v. The Queen [dxli]⁶.

This decision in my opinion adequately states the common law practice as at Independence Day. It could not be suggested that it was inapplicable or inappropriate to the circumstances of Papua New Guinea for the purposes of criminal proceedings conducted by judicial officers without a jury, or that it did not comply with the other conditions set out in the Constitution, Sch. 2.2 (1).

Recently in England, Lord Devlin, a former Lord of Appeal in Ordinary, was appointed Chairman of a Board to inquire into identification evidence. Its findings are contained in The Report on Evidence of Identification in Criminal Cases, H.C., April 1976. It does not appear to be available in Papua New Guinea but it has been commented on in a learned article, “Evidence of Identification: The Devlin Report” by Professor Glanville Williams, 1976 Crim. L.R. at p. 407. I would adopt the following extract as a sound observation upon the problems raised in this branch of the law:

“As the Committee succinctly says, the special difficulty with identification evidence is that its reliability is exceptionally difficult to assess. Ordinarily, a witness can be tested by considering whether his story is probable and coherent, and by observing his demeanour. But the evidence of identification rests on a single piece of observation; there is no story. And the witness may be wholly convinced of the correctness of his identification and yet be wrong.” — at p. 410.

The learned author refers to certain recommendations by the Committee but it is recognized that any exceptional circumstance might make any general rule concerning the acceptance of visual identification inapplicable in particular cases. One exceptional circumstance to be taken into account is the fact that the witness was familiar with the person he claims to have seen.

Another useful suggestion in the report refers to the present power of the Court of Appeal in England to set aside a verdict on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. The same ground of appeal is to be found in the Supreme Court Act 1975, s. 22. I would agree that such a ground of appeal logically enables a judge to apply such a test at the trial, particularly in critical cases of the type involving visual identification, before reaching a verdict of guilty.

However, as the facts show this is one of the exceptional cases in which the witness claimed to be familiar with the alleged offender.

Mr. Lalor, in his final address, relied strongly on the fact that Miss Jee was the only witness as to identity. His criticism of her evidence was based upon certain discrepancies, mainly in relation to her estimates of time and the details of the alleged conversation with the accused. He did not attack her honesty. His criticism was directed to the accuracy of her observation.

I have taken into account these matters and also the evidence of Mrs. McInnes, but the strong impression I had during the trial remains with me, that Miss Jee was an honest and accurate witness. I consider that she had a good and sufficient opportunity to observe the accused. She had seen him a few weeks before and three times on the day in question, that is including the view she had of him as he looked through the window and peered around the room. The lighting near the bar where the accused was standing during the conversation was adequate. Miss Jee was used to it and, as Mr. Newman said, behind the bar where the assailant came when they were standing face to face the light was reasonably bright. It is true that she did not notice the speech defect but in the conversation that took place, expanded as suggested in cross-examination, it, was quite possible for her merely to have noticed that on the first occasion he spoke slowly or had difficulty in getting his words out, which she attributed to him being scared, and on the second occasion that the words should have come out fast without her having reason to suspect that it was due to a speech defect. Moreover her evidence carries intrinsic weight in that it was not challenged that the assailant was a member of the hotel staff nor could it be challenged in view of his request for the apron accompanied by the gesture seen also by Mrs. McInnes, and this is to be taken with her other evidence, which was also not challenged, that she knew all the other employees.

I have taken into account the fact that she described the accused’s long trousers being dark in colour whilst his evidence was that they were blue — there was no cross-examination as to the shade of the colour — and her inability to remember the colour of the shirt. I have also taken into account that no blood or cognac was found on the accused’s clothes which can without difficulty be attributed to the fact that having struck her she may have fallen in such a way so as not to touch him.

This evidence has to be considered with the evidence of Mrs. McInnes that she thought that the man wore shorts and was more like Jack Paia. However she said that she was unable to identify the man and she was speaking from a recollection which was not heightened as Miss Jee’s was by taking part in the conversation and listening to the accused’s request, by the opportunities of observation upon the final occasion when the blows were delivered, and the urgent need soon after for her to recall back to those events.

Giving full consideration to her evidence I am not led by her rather vague recollection to doubt Miss Jee’s.

So far as the accused is concerned it seemed to me that he gave his evidence in a calculating manner and it did not carry the ring of truth. There is force in Mr. Edge’s comment that his record of interview discloses that he had in mind creating an alibi in view of his statements that he was accompanied by two other men when he went to the hotel and returned, and also that he did not know Miss Jee. At the trial his evidence on these matters was entirely to the contrary. I certainly do not accept his evidence of what was said at the so-called identification parade and, in my opinion, either on the evidence of Miss Jee or the Sub-Inspector, the accused’s intention was to break it up.

So far as the opportunity to commit the crime is concerned, I should mention first Jack Paia. Whether he was affected by liquor in the afternoon or not, as appears from the evidence of Michael Nopi, there is no evidence that he was the assailant. Indeed, Miss Jee knew him better than the accused, although not socially, and again no suggestion was made upon Miss Jee’s honesty, or indeed accuracy, in this respect. The possibility that following his request for the keys to the house-keeper’s room he went to the vicinity of the bar does not seem to me to bear on the final issue.

On the evidence of Mr. Wallace the accused could have left the kitchen prior to the departure of Mrs. McInnes and gone to the Bulolo Bar either by the front stairs or by the fire escape if the doors were open. Michael Nopi, as he presented himself in the witness-box, was neatly dressed and of serious manner, but he seemed to me to be reluctant to give evidence, perhaps torn by loyalty to the accused, choosing his steps and prepared to go so far but no further to help the accused. I do not think that he was giving me his honest recollection of all the events of that afternoon. I would not be prepared to act on his evidence as to times of departure or the extent of the accused’s activities or insofar as it suggests that the accused had no opportunity to leave the kitchen.

I am thus satisfied that the accused did have the opportunity to make a visit to the bar prior to 5 o’clock, when Mrs. McInnes left, and that as he was plainly in the general vicinity of the hotel at 5.30 p.m. or 5.35 p.m., that he had the opportunity once again to re-enter the bar.

In reaching my conclusion in this case I have taken into account the dangers I have referred to in acting on the evidence of identification and the requirement that, for the verdict to be a safe one, I should act upon Miss Jee’s evidence only if, after giving consideration to those dangers, I should be satisfied that the witness was both truthful and accurate. Accordingly I propose to act upon Miss Jee’s evidence, and I am thus satisfied beyond reasonable doubt that it was the accused who is criminally responsible for the attack on Miss Jee. On the medical evidence the true skin was broken, eight stitches were required to the forehead and ten at the back of the head, which is sufficient proof of unlawful wounding.

For all these reasons in my judgment the accused is guilty as charged.

Verdict of guilty of unlawfully wounding.

Solicitor for the State: K. B. Egan, Acting Public Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

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[dxxxvi]1 [1961] V.R. 761.

[dxxxvii]2 [1968] V.R. 174.

[dxxxviii]3 [1969] V.R. 151.

[dxxxix]4 (1973) 57 Cr. App. R. 871.

[dxl]5 (1975) 12 S.A.S.R. 404.

[dxli]6 [1975] W.A.R. 133.