John Beng v The State

• Jurisdiction: Papua New Guinea
• Judge: Kearney J:
• Judgment Date: 02 May 1977
• Citation: [1977] PNGLR 115
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC112

Supreme Court: Prentice DCJ, Williams J, Kearney J

Judgment Delivered: 2 May 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN BENG

V

THE STATE

Waigani

Prentice DCJ Williams Kearney JJ

2 March 1977

2 May 1977

CRIMINAL LAW — Evidence — Identification — Dangers to be borne in mind in accepting evidence of identification — Relevant matters for consideration.

EVIDENCE — Identification — Dangers to be borne in mind in accepting evidence of identification — Relevant matters for consideration.

CRIMINAL LAW — Appeal against conviction — Verdict "unsafe or unsatisfactory" — Reasonable doubt as to safeness or satisfactoriness required — Supreme Court Act 1975 s. 22 (1) (a).

The appellant was convicted of unlawfully wounding a young woman, the identification of the appellant (who denied responsibility) by the young woman being the only real matter in issue on the trial. The appellant appealed therefrom under s. 4 (2) of the Supreme Court Act 1975 in reliance upon s. 22 (1) of the Act.

Section 22 (1) (a) of the Supreme Court Act 1975 provides:

"Subject to subsection (2), on appeal against a conviction the Supreme Court shall allow the appeal if it thinks that (a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.

Held

(1) On appeal against conviction pursuant to s. 22 (1) (a) of the Supreme Court Act 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.

Stafford v. D.P.P., [1974] A.C. 878; referred to.

R. v. Sean Cooper (1969) 53 Cr. App. R. 82, Himson Mulas v. The Queen, [1969-70] P. & N.G.L.R. 82 at p. 86, Kampangio v. The Queen, [1969-70] P. & N.G.L.R. 218 at p. 223 and Regina v. Worobi Dese, [1974] P.N.G.L.R. 23 at p. 29 not followed.

(2) In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.

R. v. Raymond Turnbull & Ors. (1976) 63 Cr. App. R. 132 followed,

The State v. John Beng [1976] P.N.G.L.R. 471 upheld.

(3) Neither the evidence, nor the conduct of the trial, nor the directions which the trial judge gave to himself, raised a reasonable doubt as to the safeness or satisfactoriness of the verdict and the appeal should be dismissed.

Appeal

This was an appeal brought under s. 4 (2) of the Supreme Court Act 1975, in reliance upon s. 22 (1) (a) thereof, against a conviction of unlawful wounding. The appeal was concerned only with the question of identification of the appellant (accused) which was the major issue on the trial.

Counsel

WJ Andrew for the appellant

KB Egan for the State

Cur. adv. vult.

2 May 1977

PRENTICE DCJ WILLIAMS J: The appellant was on 14th October, 1976 convicted in the National Court of unlawfully wounding one Jenny Jee, a female bartender, in the Papua Hotel. That Miss Jee was in the late afternoon of 26th June, 1976 attacked by a man with a bottle is not in issue. The issue of identification of the woman's assailant was hotly contested at the trial. This appeal is concerned only with the question of identification.

It is urged now that the conviction should be set aside as being unsafe and unsatisfactory for a number of reasons, all relating to the evidence of identification. The appeal is thus brought under s. 4 (2) of the Supreme Court Act 1975, in reliance upon s. 22 (1) (a) thereof; which states:

"Subject to subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that:

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory ..."

The sections were in their present form inserted in the Supreme Court (Full Court) Act 1968 of pre-Independence Papua New Guinea, when a Full Court was first instituted in the country in 1968. Section 4 (2) appears to have been taken from a similar section introduced in the United Kingdom by the Criminal Appeal Act 1966 s. 4 (1) (now s. 2 (1) of the United Kingdom 1968 Act).

Appellant's counsel urges that this Court should allow an appeal brought in this guise, if it entertains "a lurking doubt" as to the propriety of the trial verdict. The phrase "lurking doubt" is to be found expressed in Sean Cooper (1969) 53 Cr. App. R. 82, a judgment of the Court of Appeal (Criminal Division) U.K., and in Stafford v. D.P.P. [1974] A.C. 878, a decision of the House of Lords. As we understand counsel's submission, it is that if this Court has any "lurking doubt" about a significant feature of the evidence, that is equivalent to a demonstration of the unsafety and unsatisfactoriness of the verdict.

In the United Kingdom under the original provisions of the Criminal Appeal Act of 1907 (s. 4 (1) (2) ) which allowed inquiry into unreasonableness and miscarriage of justice, it had been held that it was not sufficient merely to show a weak case or to raise some doubt in the minds of the members of the appeal court. Understandably, there was reluctance to allow virtually the conduct of a second hearing before a different tribunal.

It was stated after some years of operation that the 1907 Act had resulted in the Court being "burdened with frivolous appeals" and that "ninety per cent of the applications are frivolous". (Avory J. 15 Cr. App. R. 142). Nevertheless it was felt in the sixties in the United Kingdom that a wider ground of discretion in the court of appeal was necessary.

In an early appeal under the new "unsafe or unsatisfactory" provision, the Court of Appeal (U.K.) was content, the situation having seen the acquittal of two of three charged together, to rule, without putting a gloss on the section, that "... in all the circumstances of the case it is, in our opinion, unsafe and unsatisfactory to allow the conviction ..." (George Smith (1967) 51 Cr. App. R. 22 at p. 28).

Sean Cooper (1969) 53 Cr. App. R. 82 brought a new approach. That case was one in which evidence had been put before the jury that another man had admitted to the crime and had been told that he should not let the appellant take the blame on an incorrect identification. In discussing the new powers given it, the Court stated as to s. 2 of the 1968 Act (U.K.):

"... That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

We pause to say by way of commentary, and with the greatest respect, that it cannot readily be seen why the Lords Justice have supplanted for the plain words of the United Kingdom statute, a new formula of their own devising (purportedly by way of gloss). We would also comment that it is difficult for the "general feel of the case" to be acquired by an appeal court from the mere reading in cold type of a transcript of the original proceedings divorced from the undoubted advantage of observation of the demeanour of witnesses and the general atmosphere surrounding the trial.

The United Kingdom statute was further discussed in 1974, by the House of Lords in Stafford v. D.P.P. [1974] A.C. 878. This case involved the tender of fresh evidence when the matter was referred back to the Court of Appeal by the Secretary for State; the question argued was whether the Court of Appeal should have considered what the possible approach of the jury to the new evidence would have been, rather than to have considered what its own approach to the appeal in the light of the new evidence was. Counsel for the appellant concerned himself with whether the fresh evidence might have raised a reasonable doubt in the jury's mind. He does not seem to have adopted the "lurking doubt" test.

The speeches in the House of Lords reveal that Lord Pearson merely stated that the verdict of the jury was not unsafe or unsatisfactory; and agreed with Viscount Dilhorne. Viscount Dilhorne after citing the passage from Sean Cooper6...