Ilai Bate v The State (2012) SC1216

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Cannings J, Gabi J
• Judgment Date: 20 December 2012
• Citation: (2012) SC1216
• Docket Number: SC REV NO 61 OF 2008
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1216

Full Title: SC REV NO 61 OF 2008; Ilai Bate v The State (2012) SC1216

Supreme Court: Injia CJ, Cannings J, Gabi J

Judgment Delivered: 20 December 2012

SC1216

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 61 OF 2008

ILAI BATE

Applicant

V

THE STATE

Respondent

Waigani: Injia CJ, Cannings J, Gabi J

2012: 28 August, 29, 30 October, 20 December

CRIMINAL LAW – identification evidence – requirement to take account of inherent dangers in relying on identification evidence – when appropriate to regard identification as recognition – quality of identification evidence – relevance of identification witness being intoxicated – relevance of lighting to quality of identification evidence – whether corroboration necessary.

CRIMINAL LAW – consideration of defence evidence – recognition of apparent inconsistencies in evidence – whether adverse inference can be drawn against accused who gives evidence after exercising right to remain silent in police interview – trial judge’s duty to set out elements of offence.

The applicant was convicted after trial of one count of manslaughter. The trial judge relied on identification evidence by the State witness who identified the applicant as the person who attacked the deceased, killing him, regarding that evidence as succinct and of high quality and taking into account that the defence had provided no reason for the State witness giving false evidence and that he had been threatened. The trial judge rejected completely evidence by the applicant and his parents which put the applicant away from the crime scene at the critical time, regarding that evidence as not credible as it contained too many inconsistencies and was a story not told in the applicant’s police interview (in which he had remained silent). The applicant was granted leave to argue that the trial judge erred in law in two respects. First, by regarding the identification evidence as being of high quality when it was not. Secondly, by giving insufficient weight to the defence evidence.

Held:

(1) A trial judge must be alert to the inherent dangers of relying on the correctness of identification to support a conviction and issue an appropriate self-caution and carefully assess the quality of the identification evidence.

(2) In assessing identification evidence, relevant considerations include: that an honest witness can be mistaken and still be convincing; that an identification witness must be both honest and accurate; whether the evidence is corroborated; whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused; the emotional state of the witness at the time of the incident; the prevailing conditions; the line of sight (John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 applied).

(3) A trial judge must ensure that the accused is presumed innocent until proven guilty according to law and to that end must ensure amongst other things that sufficient weight is given to the defence evidence, that the constitutional right of an accused to remain silent is enforced and that the elements of the offence being tried are accurately set out and applied.

(4) As to the first ground of review: the trial judge gave an adequate self-caution as to the danger of entering a conviction on the basis of identification evidence, but erred in fact by treating this without justification as a case of recognition, as distinct from identification; disregarding two significant aspects of the evidence that reduced the reliability of the identification evidence; finding without sufficient evidence that the crime scene was well lit; finding without sufficient evidence that the State witness had been threatened and approached by the applicant; and not requiring corroboration of the identification evidence.

(5) As to the second ground of review: the trial judge erred in fact by misapprehending three significant aspects of the evidence of the defence witnesses, erred in law by drawing an adverse inference against the accused for exercising his right to remain silent and erred in law by not setting out the elements of the offence being tried.

(6) Both grounds of review having been substantially upheld, the application for review was granted and the Court, having adopted provisions of the Supreme Court Act relating to determination of appeals (as distinct from reviews), concluded that the guilty verdict was unsafe and unsatisfactory and there had been a miscarriage of justice and ordered a new trial.

Cases cited

The following cases are cited in the judgment:

Alois Erebebe & Taros Togote v The State (2011) SC1135

Biwa Geta v The State [1988-89] PNGLR 153

Charles Ombusu v The State [1997] PNGLR 699

Devlyn David v The State (2005) SC881

Fred Bukoya v The State (2007) SC887

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

Onama Andrew v The State (2009) SC997

Oscar Tugein v Michael Gotaha [1984] PNGLR 137

Patrick Towingo v The State (2008) SC983

Stanley Poke v The State (2010) SC1055

The State v Henry Osare Kales (2001) N2115

The State v Ilai Bate (No 1) (2008) N3555

The State v Ilai Bate (No 2) (2008) N3556

REVIEW

This was an application under Section 155(2)(b) of the Constitution for review of a conviction for manslaughter.

Counsel

D K Mamu, for the applicant

D Mark, for the respondent

20 December, 2012

1. BY THE COURT: This is a review of a conviction for manslaughter. The applicant, Ilai Bate, originally lodged an appeal against his conviction but it could not be heard as an appeal as it was filed outside the 40-day limit set by the Supreme Court Act. He has been granted leave to apply for review of the National Court’s decision by the Supreme Court under Section 155(2)(b) of the Constitution.

THE TRIAL

2. The applicant was on 18 September 2008 found guilty by the National Court at Alotau of unlawfully killing the deceased, Trent Wesley, aged 21 years, at Garuboi Street, Alotau. The incident that led to the death occurred in the early hours of Saturday 5 May 2007. The Court found that the applicant killed the deceased by attacking him with a crowbar, which penetrated his head and caused a depressed skull fracture and extensive herniation of brain matter from the dura. The trial judge relied on identification evidence by the sole State witness who identified the applicant, who was 23 years old at the time of the trial, as the person who attacked the deceased, regarding that evidence as succinct and of high quality and taking into account that the defence had provided no reason for the State witness giving false evidence and that the witness had been threatened.

3. The trial judge rejected evidence by the applicant and his parents which put the applicant away from the crime scene at the critical time, regarding that evidence as not credible as it contained too many inconsistencies and was a story not told in the applicant’s police interview, in which he had remained silent.

4. The applicant was indicted on a charge of wilful murder but the trial judge held that the State proved neither an intention to kill nor an intention to do grievous bodily harm and entered a conviction for manslaughter (The State v Ilai Bate (No 1) (2008) N3555). The applicant was sentenced to 20 years imprisonment (The State v Ilai Bate (No 2) (2008) N3556). He is not seeking review of the sentence. The review is only of his conviction.

GROUNDS OF REVIEW

5. The applicant has been granted leave to argue two grounds of review. They were drafted by the applicant himself and are not clearly expressed. His counsel Mr Mamu has requested that they be treated as alleging two categories of errors of law on the part of the trial judge and, as no objection has been raised by counsel for the respondent Mr Mark, we grant the request and will deal with them as follows.

6. Ground # 1, which alleged “that there was a miscarriage of justice in that the learned trial judge has convicted me on uncorroborated evidence of a front line enemy who has every reason to fabricate or invent new theories upon which my conviction was sustained” is treated as an argument that the trial judge erred in fact and law by regarding the identification evidence as being of high quality when it was not.

7. Ground # 2, which alleged “that the learned trial judge misconceived or wrongfully conceived the defence evidence upon which she constructed a hypothesis negating or destroying the credibility of the defence evidence resulting in my wrongful conviction”, is treated as an argument that the trial judge erred in fact and law by giving insufficient weight to the defence evidence.

GROUND 1: REGARDING THE IDENTIFICATION EVIDENCE AS OF HIGH QUALITY WHEN IT WAS NOT

8. Mr Mamu submitted that the trial judge erred in law and fact by:

(a) giving an inadequate caution;

(b) treating this as a case of recognition;

(c) disregarding evidence...