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State v Tibong [1982] PGNC 30; N361(M) (13 January 1982)

N361(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

NATUAI TIBONG AND THOMAS SOME

Lae: Kidu CJ
13 January 1982

APPLICATION TO RULE THAT TIBONG BE ACQUITTED AT THIS STAGE

KIDU CJ: Mr. Formosa for Tibong asks me to rule that his client should be acquitted at this stage because the evidence of identification is unsafe and unsatisfactory.

The evidence of identification has so far come from the complainant. However, the state concedes that there is no other evidence of identification to be adduced in respect of the accused Tibong.

There is no contention by the Defence that the Complainant was raped by five men. In fact one Samson Dedeurina has pleaded guilty to the offence.

The complainant was forced to get in her own car and driven to a place near the Markham Bridge. She was pack raped there and then driven back to Lae and left with her car, near the Fire Brigade Station, opposite the Botanical Gardens.

From the University of Technology to the scene of the rape, she did not have a look at the face of the man sitting in the back seat of the car with her (and another man in between). She says this man (Tibong) avoided her seeing his face.

The evidence of identification is as follows:

She says Tibong was the 4th man of have sexual intercourse with her the first time. The second time he had sexual intercourse last. She said he was about 5'11", with a beard, broad nose and dark skin. He was the quietest of the group and she pleaded with him to do what they want but to save her life. He also said to her in the car "stap isi", when they were driving from the University of Technology to Nadzab. After these five men raped her two went to the main road to check for police patrols. While they were gone she was in the car with Tibong, Some and another. Tibong, she says, sat in the back seat with her on her left. Someone sitting in the driver's seat (Philip she says) opened the door and the interior light came on. It was on for about five seconds before the door was closed. In that five seconds she saw Tibong on her left, someone on her right and the person in the driver's seat. She agreed on cross-examination that she could have, at the most, had two seconds to look at the person on her left (she says Tibong). Apart from this very short time, the complainant did not have another opportunity to see this man's face until she was left near the Botanical Gardens.

About 9 days after the incident she attended an identification parade. She spent seven to ten minutes on each person at that parade. There were, according to her, 12 to 15 men. She identified Tibong as one of the five men who raped her.

In her evidence she also says that Tibong worked for the Lae City Council and she had seen him driving a City Council Vehicle around town. She also said Tibong and another man had, before the incident, gone to Boroko Motors (where she works) and bought a motor vehicle. The complainant also said Tibong looked like a man who had been sacked by Boroko Motors the day before the incident. She agreed in cross-examination that none of these pieces of information were ever given to the police investigators. She never said at the identification parade that she recognised Tibong because of these reasons either.

Apart from the two seconds she had at the scene of the crime when the interior lights came on and she had a look at the man she says is Tibong, there is no other evidence of the witness seeing this man's face.

I do not put much reliance on the other bases of identification. These are that Tibong had a beard, broad nose, dark skin and about 5' 10". These features could fit quite a lot of Papua New Guineans.

In the personal notes she made before the trial (and committal) she did not note down that she knew one of the men who raped her because he worked in the City Council and she had seen him around Lae driving a white City Council Vehicle. These in my view were important pieces of evidence.

The law on identification is contained in the case of John Beng v. The State [1977] PNGLR 115^[1]. In that case the Supreme Court said this at pp. 122.

"It has long been recognised that there are dangers inherent in eye witness identification evidence. The Court was referred to a number of authorities, the latest of them being a decision of the House of Lords in Raymond Turnbull and Others, (1976) 63 A. app. R. 132). In that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the headnote to the report) were made:

"Whenever the case against the accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning given, no particulars form, of words need to be used. Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness Case to be made ... Recognition may be made reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution. When the quality of the identifying evidence is poor i.e. a fleeting glance or a longer observation made in difficult conditions - the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification".

A number of other cases were cited in argument. However, it seems to us that, as agreed by counsel for the appellant, the matter cannot be put higher, from the appellant's point of view, than in accordance with the principles in Turnbull"

We have of course no juries in this Country. A Judge performs the function of both the Tribunal of Law and Jury (The Tribunal of Fact).

In considering the identification evidence I have been guided by the authority I have cited-that of the Supreme Court of Papua New Guinea.

There is no other identification evidence against the accused Tibong to be adduced by the State. Mr. Henao has made this quite clear.

The complainant says she saw the face of the man, on her left in the back, for about two seconds when the interior lights came on for 5 seconds. In that five seconds she also saw someone on her right and a man Philip in the driver's seat. Two seconds is indeed a very short time. In the state she was after a pack rape I do not think two seconds adequate to say definitely she recognized this man on her left as Tibong.

At the identification parade on 17th May, 1981, nine days after the incident she observed Tibong for 7 to 10 minutes. Yet in this Court she was unable to say what kind of pants he wore. The point here is merely to emphasis the dangers of relying on evidence of identification for two seconds at night time, straight after the rape.

The complainant emphasized the fact that the man she says is Tibong avoided her seeing his face. It could be he was the man who had been sacked from Boroko Motors the day before. When the five men ran into the Botanical Gardens, one had a Boroko Motors T. Shirt on. She does not say who this man was. It could have the Boroko Motors man sacked the day before the incident. She says Tibong looks similar to this man. The fact is Tibong did not work at Boroko Motors. One could speculate what would happen if this man had been in the Police identification parade. I am not saying the complainant is a liar. What I am saying is that I can't rule out, on the evidence before, the possibility of a mistaken identification.

Her evidence of identification of the accused as the car passed various street light is not definite. I find it difficult to accept that she would have identified Tibong under these circumstances. If he was avoiding her looking at him, she could only have formed general impressions of his features.

If there was a jury now I would have no hesitation in withdrawing the case against Tibong from them. However, there are no such things as juries in Papua New Guinea. I therefore rule that the evidence of identification against Tibong is unsatisfactory.

I withdraw his case from further consideration by me in my capacity as the Tribunal of Fact.

I acquit him and discharge him now.

Solicitor for State: Public Prosecutor.
Counsel: L. Henao
Solicitor for Accused: Public Solicitor.
Counsel: P. Formosa.

^[1] [1977] PNGLR 115.