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State v Robert [2022] PGNC 6; N9395 (21 January 2022)

N9395

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 376 OF 2019
CR NO 378 OF 2019
CR NO 379 OF 2019
CR NO 380 OF 2019
CR NO 381 OF 2019

STATE

V

DAVID ROBERT, ERICK AKO PEAWI, JUSTIN TONY KAPI, JETRO PAINA BENNY AND PAKI RABULA

Waigani: Wawun-Kuvi, AJ
2022: 19^th, 20^th & 21^st January

CRIMINAL LAW-TRIAL-Application to stop the case-Criminal Code, Wilful Murder, s 299 (1)-Application to stop the case- inherently weak, vague or is inconsistent with other evidence – Application to stop case upheld

CRIMINAL LAW-EVIDENCE-Identification- In Court identification or dock identification-No identification parade--Identification of strangers

The accused persons were charged with wilful murder under Section 299 (1) of the Criminal Code. The cause of death was a fracture to the cervical spine. The State alleged that the accused were part of a group of men numbering more than ten (10), who attacked the deceased with timber planks and iron bars. The State invoked section 7 (1) (a) and (c) of the Criminal Code.

Held:

1. In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb in the case of State v Paul Kundi Rape [1976] [1976] PNGLR 96 which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.
2. In relation to identification evidence, the Court is entitled to stop the case where the quality of the identification evidence is poor and there is no other evidence which supports the correctness of the identification: R v Turnbull [1977] Q.B 224.
3. The supreme Court in John Beng v The State [1977] PNGLR 115 adopted R v Turnbull [1977]. The adoption of R v Turnbull included the principle in law, that a Judge ought to stop a case where the identification evidence is poor and is not supported by any other evidence.
4. This has been the same statement of law that has been applied both in the National Court and Supreme Court. More recently by the Supreme Court in John v State [2021] PGSC 92; SC2165. I am therefore of the conclusion that the law is settled in our jurisdiction that a Judge is entitled to stop a case where the quality of the identification evidence is poor and is not supported by any other evidence.
5. There is no provision in the Evidence Act (Ch 48) or the Criminal Practice Rules 1987 that provides for dock identification. It has been a practice adopted from the common law.
6. In-court identification, or dock identification, whilst admissible should be accompanied by prior identification in the form of photo boards or identification parades. Without such prior identification, the in-court identification or dock identification has very little probative value, especially when it is identification of a stranger: R v Doyle [2010] QCA 204, Festa v The Queen (2001) 208 CLR 593 and R v Savage [1994] QCA 020 and Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395.
7. The proper basis of dock identification, is not to have the witness identify the accused as being the perpetrator in the first instance but rather to give a witness the opportunity to confirm in court the previous identification or retract it: R v Doyle [2010] QCA 204 at paragraph 39 and R v Savage [1994] QCA 020 per Pincus JA
8. I find that the quality of the identification evidence is inherently weak and is not supported by any other evidence.
9. I also consider the circumstances of identification in Court to be unfair to the accused persons.
10. The Application to stop the case is upheld.
    

Cases Cited:

Papua New Guinea Cases

John v State [2021] PGSC 92; SC2165
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287
John Beng v The State [1977] PNGLR 115
The State v Paul Kundi Rape [1976] PNGLR 96

Overseas Case

R v Doyle [2010] QCA 204
Festa v The Queen (2001) 208 CLR 593
R v Savage [1994] QCA 020
R (1989) 44 A Crim R 404
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 399
R v Turnbull [1977] Q.B 224

Reference

Criminal Code (Ch 262)

Counsel
Ms Comfort Langtry, for the State
Mr Fredrich Kirriwom, for the Defence

RULING

21^st January, 2022

1. WAWUN-KUVI, AJ: The State has closed its case. The Defence now ask the Court to stop the case.
   
2. The defence submission is that the State’s identification evidence of the accused persons was weak and of a tenuous nature. That the conditions under which the State’s primary witness made the identification of the accused persons is so poor that no reasonable tribunal could safely convict.
   
3. The State submits that there is some evidence as to each element of the offence.

The Law On No Case to Answer

4. In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb in the case of State v Paul Kundi Rape [1976] ^[1]which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983]^[2].
   
5. In relation to identification evidence, the Court is entitled to stop the case where the quality of the identification evidence is poor and there is no other evidence which supports the correctness of the identification: R v Turnbull [1977] Q.B 224. The full Bench in R v Turnbull held that:
   

“Recognition may be more 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.

In our judgement when the quality of evidence is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbor, a close friend, a work mate and the like, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always that adequate warning has been given about the special need for caution......

When in the Judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The Judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification...”^[3] [Emphasis mine]

6. R v Turbull was also applied in the Court of Criminal Appeal in New South Wales in R (1989) 44 A Crim R 404. The Court of Appeal held a Judge may find a no case to answer and acquit an accused where the identification evidence is not satisfactory.
   
7. Twelve years prior to R (1989) 44 A Crim R 404, the supreme Court in John Beng v The State [1977] PNGLR 115 adopted R v Turnbull [1977]. The adoption of R v Turnbull included the principle in law, that a Judge ought to stop a case where the identification evidence is poor and is not supported by any other evidence.
   
8. This has been the same statement of law that has been applied both in the National Court and Supreme Court. More recently by the Supreme Court in John v State [2021] PGSC 92; SC2165. I therefore am of the conclusion that the law is settled in our jurisdiction that a Judge is entitled to stop a case where the quality of the identification evidence is poor and is not supported by any other evidence.

The Charge

9. The Accused is charged for Wilful Murder under section 299(1) of the Criminal Code. The State invoked section 7 (1) (a) and (c) of the Code.

The Allegations

10. It was alleged that on 6 September 2018, between 2 am and 3 am, the deceased and his uncle Larry Nomi were consuming alcohol near a trade store. Philip Rigina approached them and removed a coffee punch bottle from the deceased. The deceased and Larry Nomi then walked away. Philip Rigina followed them and informed them that he would replace the alcohol. They then walked back to where the accused persons were. The accused persons then attempted to remove a phone from the deceased. He refused. They started assaulting him. They removed timber planks from a bench outside the store and iron bars from an old fence and used those implements to assault the deceased. Larry Nomi ran to a field and picked a stick to aid the deceased. They were however outnumbered. The commotion caused residents to proceed out of their homes and investigate. They found the deceased lying in the street and rushed him to the hospital. He was pronounced dead on arrival.

The Prosecution Case

11. The State’s case was based on identification evidence.
    
12. The State tendered the statement of the police photographer attaching the photographs, the doctor’s affidavit attaching the autopsy report, the Record of Death, Report of Death to the Coroner and the Order for Post-Mortem Examination. The documents were exhibited from “S1” to “S5”.
    
13. The State called one witness out of the twenty-three witnesses listed on the indictment. The witness was Larry Nomi.
    
14. Larry Nomi gave evidence that he was drinking coffee punch with the deceased. He explained that coffee punch is a type of pre-mix alcohol. They bought a one-liter bottle and split the drink into two 500 ml containers. The coffee punch was not mixed with anything. After they finished the first bottle, they bought another one. They did not have an opportunity to drink the second bottle before the accused persons arrived. The accused persons were in a group numbering more than ten men.
    
15. A Philip Rigina approached the deceased and grabbed the bottle of coffee punch. He gave the bottle to the group of men. He and the deceased walked away up a hill. Philip Rigina followed and grabbed the deceased. He said that he would replace the alcohol that he had taken. Philip Rigina convinced the deceased to follow him back down. He followed both men from behind.
    
16. Philip Rigina then pushed the deceased into the crowd of men. They were the same men who had earlier taken the coffee punch bottle. The men started grabbing the deceased. They were trying to steal his phone. He resisted. They started assaulting him.
    
17. They grabbed timber planks from a nearby bench and iron rods from an old fence. They used the timber and rods to strike the deceased on his body. They viciously assaulted him. He tried to assist the deceased. He ran and fetched a stick, but he was hit across his wrist. The deceased was struck on the back part of his neck with an iron rod. This caused him to fall. When the deceased fell, the accused persons chased him. He ran up the hill to his house. He asked for water. He sat down and drank water assuming that there was nothing serious with the deceased. He was later informed that the deceased had died. He went to the hospital and viewed the body. Police then took him to the Police Station to give his statement.
    
18. When asked about the lighting, he stated that there were two shops on each side of the road. That each of the shops had a florescent light bulb similar to the lights in the court room.
    
19. In cross examination, he admitted that he does not know the accused person. The first time he saw them was when he witnessed them attacking the deceased. He does not know their names. He agrees that he was also assaulted but he was adamant that he saw the accused persons. He says that the lighting was sufficient. When it was put to him that there was no shop on the right side of the road, he stated that the police photographer did not capture it. It was also put to him that he said the place was dark in his statement to police. He stated that the policeman must have written that down because he did not say that the place was dark.
    
20. When his statement was shown to him, he said he did not sign the statement but another person who was with him signed the statement.
    
21. As to his level of intoxication, he stated that he was not drunk as he had only consumed 500 ml.

Circumstances of Identification

Lighting

22. The record of death confirms death at 3.30 am. It further confirms that the deceased died on arrival. This indicates that the deceased was attacked before 3.00 am. In reaching that conclusion, I considered the length of time that it took other people to find the deceased body, for them to locate a vehicle and subsequently transporting his body from Tokarara to 3 Mile.
    
23. I find therefore that the area in which the attack occurred was dark.
    
24. In terms of whether the lighting was sufficient, Larry Nomi says that there was sufficient lighting. The lights came from two shops from both sides of the road. That the shops were directly opposite each other.
    
25. The photographs taken by Constable Dabada Kobua show otherwise. Photographs 6 to 10 show close- up views and general views of the crime scene. They are no shops visible on either side of the road. There are only residential homes. The homes are not close to the road. There are also no permanent structures whether homes or shops next to the road. There is only an incomplete makeshift roadside market at the edge of the road near the place where the deceased was found.
    
26. Contrary to what Larry Nomi says about the photographer cutting out or not taking the whole area, the photographer’s general view of the crime scene shows clearly both sides of the road, right up to the residential properties.
27. I do not accept that there was sufficient lighting.
    

Prior knowledge of suspects

28. The accused persons are strangers to Larry Nomi. He says that the first time he saw them was at the crime scene.

Number of suspects

29. He says that there were more than 10 men attacking the deceased. That the accused persons were the ones that were caught, and others ran away.

Date of apprehension

30. The dates of apprehension of each accused are unknown. However, it is clear from the evidence that they were not apprehended immediately after the assault on the deceased.

Opportunity to observe

31. Larry Nomi describes that he went and got a stick to aid the deceased. That he was also attacked and injured in the wrist. That the men chased him after the deceased was knocked to the ground. He describes the events as happening quickly.
    
32. I find that he did not have sufficient opportunity to observe the identity of the perpetrators.
    

Condition of Larry Nomi

33. He had consumed 500 ml of pre-mix alcohol. Whilst I may not be satisfied as to his level of intoxication, I do however, accept that his observation was affected by alcohol to some extent.
    

Dock Identification

34. The Prosecutor asked Larry Nomi to point to each of the accused and say what each of them did.
    
35. He pointed to Erick Ako Peawi and stated that Erick Ako Peawi held an iron bar and struck the deceased on the back of the neck. This caused the deceased to fall and die.
    
36. In cross examination, he pointed to David Robert as being the person who delivered the final blow. However, he shifted between David Robert holding a timber and an iron bar.
    
37. In re-examination by the Prosecutor, he identified David Robert as the person who struck the final blow causing the deceased to fall.
    
38. In relation to Tony Kapi, he said Tony Kapi had used a timber plank to hit the deceased.
    
39. He identified Jetro Paina Benny and Paki Rabula as persons holding iron bars and striking the deceased.
    
40. However, in cross examination, he shifted between Paki Rabula holding an iron to holding a timber plank.
    
41. I find that Larry Nomi was not being entirely truthful as to his observations.

The Law on Dock identification

42. There is no provision in the Evidence Act (Ch 48) or the Criminal Practice Rules 1987 that provides for dock identification. It has been a practice adopted from the common law.
    
43. Dock identification or in court identification is the process in which a witness identifies the accused as the person he saw at the crime scene^[4]. It is a form of identification that has been described as problematic. Gleeson CJ in Festa v The Queen (2001) 208 CLR 593 stated:

“Of all forms of identification evidence, one of the most notoriously dangerous is in court identification, which is usually performed in circumstances that strongly suggest the answer that is ultimately given.”^[5]

44. Mason J in Alexander v The Queen (1981) stated:
    

“Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connection with, the crime. This “in court” identification, sometimes describes as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial, circumstances conspire to compel the witness to identify the accused in the dock.”^[6][Emphasis mine]

45. The authorities hold that, in-court identification, or dock identification, whilst admissible should be accompanied by prior identification in the form of photo boards or identification parades. Without such prior identification, the in-court identification or dock identification has very little probative value, especially when it is identification of a stranger.^[7]
    
46. The proper basis of dock identification, is not to have the witness identify the accused as being the perpetrator in the first instance but rather to give a witness the opportunity to confirm in court the previous identification or retract it.^[8]

Conclusion

47. In this case, the circumstances of identification were less then favorable. Larry Nomi does not know the accused persons. He was identifying strangers. He says that there were over 10 men that attacked the deceased. I found that the lighting was poor. He was being attacked the same time the deceased was attacked. He had consumed alcohol prior to the attack. He first saw the accused persons in 2018. He now identifies them in Court four years later. I do not accept that he is able to identify the persons who killed the deceased.
    
48. Additionally, there was no identification parade conducted by police. The witness had issues during the dock identification in identifying what each accused person did. The evidence has very little probative value.
    
49. I find that the quality of the identification evidence is inherently weak and is not supported by any other evidence.
    
50. I also consider the circumstances of identification in Court to be unfair to the accused persons.
    
51. For the foregoing reasons, I uphold the application by the Defence.
    

Orders:

52. The Orders of the Court are:

1. The Application to stop the case is upheld.
2. A Verdict of Not Guilty is Returned.
3. The Accused are acquitted.
4. The Accused are discharged of the Indictment dated 18 January 2022.
5. The Accused are discharged from custody.
6. Bail is refunded for Eric Ako Peawi

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

^[1] PNGLR 96
^[2] PNGLR 287 (14 September 1983)
^[3] at 229-230
^[4] https://www.alrc.gov.au/publication/uniform-evidence-law-alrc-report-102/13-identification-evidence/in-court-identification
^[5] At 601 and 1. See Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 399; R v Doyle [2010] QCA 204, Festa v The Queen (2001) 208 CLR 593, 601 and R v Savage [1994] QCA 020. See also: Australian Law Reform Commission, Identification Evidence, In-court identification (ALRC 102) .

^[6] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 426–427
^[7] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395; R v Doyle [2010] QCA 204, Festa v The Queen (2001) 208 CLR 593 and R v Savage [1994] QCA 020
^[8] R v Doyle [2010] QCA 204 at paragraph 39 and also R v Savage [1994] QCA 020 per Pincus JA.