Jimmy Ono v The State (2002) SC698

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Sevua J, Kandakasi J
• Judgment Date: 04 October 2002
• Citation: (2002) SC698
• Docket Number: SCR No 7 of 2002
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC698

Full Title: SCR No 7 of 2002; Jimmy Ono v The State (2002) SC698

Supreme Court: Hinchliffe J, Sevua J, Kandakasi J

Judgment Delivered: 4 October 2002

1 APPEAL—Appellant obliged to show identifiable error to allow interference of trial judge's discretion—No identifiable error demonstrated—Appeal dismissed.

2 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.

3 Ian Napoleon Setep v The State (2001) SC666, Vaii Rocky Maury v The State (2001) SC668, John Beng v The State [1977] PNGLR 115, The State v Marety Ame Gaidi (2002) N2256, David Kandakason v The State (1998) SC558, The State v Amoko–Amoko [1981] PNGLR 373, The State v John Kasaipwalova (1977) N80, The State v Kindung [1996] PNGLR 355, The State v Raphael Kimba Aki (2001) N2039, Abiari v The State [1990] PNGLR 250, The State v Max Charles (2001) N2187, The State v John Michael Awa (2000) N2012 and The State v Vincent Malara (2002) N2188 referred to

___________________________

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....