Taiya Balua v The State (2006) SC878

• Jurisdiction: Papua New Guinea
• Judge: Los, Manuhu, Gabi, JJ
• Judgment Date: 30 June 2006
• Citation: (2006) SC878
• Docket Number: SCR 16 OF 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC878

Full Title: SCR 16 OF 2005; Taiya Balua v The State (2006) SC878

Supreme Court: Los, Manuhu, Gabi, JJ

Judgment Delivered: 30 June 2006

SC878

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 16 OF 2005

BETWEEN:

TAIYA BALUA

Appellant

AND

THE STATE

Respondent

Mt Hagen: Los, Manuhu, Gabi, JJ.

2006: June 26 & 30.

DECISION

CRIMINAL LAW – Appeal against conviction – Armed robbery – Identification evidence – Circumstantial evidence – Appeal upheld.

Cases cited:

John Beng v The State [1977] PNGLR 115.

Luingi Yandasingi v The State [1995] PNGLR 268.

Paulus Pawa v The State [1981] PNGLR 498.

Counsel:

The Appellant in person.

R Auka, for the Respondent.

30 June 2006.

1. BY THE COURT: The appellant was convicted for armed robbery on 17 March 2005 and was sentenced to 12 years in hard labour. He appeals against both the conviction and sentence.

2. There was no dispute that an armed robbery took place at Don Bosco Technical School at Kerowagi, Simbu Province on Monday 2 February 2004 at about 6.20 pm.

3. A lot of parents and students were at the school for enrolment which began in the morning and ended at about 6.00 pm on that day. The school rector, Father Roger Miranda and Sr Leena John had collected about K30,000.00 in school fees from the students and parents.

4. They spent another 20 minutes in the administration building and were about to leave when they were confronted by a man with a woollen cap at the corridor. He conversed with the rector and then produced a gun and had it placed on the rector’s forehead.

5. Another man appeared. He was also wearing a woollen cap. He threatened to cut the rector’s hand with a knife and then grabbed the money bag from the rector.

6. The confrontation was over within a matter of two minutes. During this time, Sr Leena was screaming and continued screaming when she left the corridor to seek assistance. Both men were not previously known to the rector and Sr. Leena.

7. The rector was out of the country and did not give evidence at the trial. Only Sr. Leena gave evidence for the State. She told the trial Judge that the appellant was the person who held the knife. The person with the knife was short, not very tall but strong and dark in complexion.

8. She did not see him again until Wednesday 4 February 2004 when police took the appellant to the school for identification. The appellant was alone when she was identified by Sr. Leena as the same person who held the knife during the robbery.

9. Sr. Leena’s evidence was seemingly supported by the evidence of Joseph Maima. Joseph Maima was a carpenter at the school. He stated that he and his supervisor saw “plenty people” who used to hold up vehicles. He named the appellant as one of them. These people were at the school grounds. The supervisor then wrote a letter and had it delivered to the rector. The carpenter left the school at about 5.00 pm. He heard later that there was a robbery at the school. He gave the names of the suspects, including the appellant’s name, to the police.

10. Identification was, of course, the main issue at the trial. The appellant is unrepresented. He has not directly raised the issue of identification but his grounds of appeal revolve around the issue of identification.

11. The law on identification is settled. In short, correctness of identification is established by “closely examining the circumstances in which the identification by each witness came to be made:” John Beng v The State [1977] PNGLR 115. See also the Supreme Court case of Luingi Yandasingi v The State [1995] PNGLR 268, Amet CJ, Kapi DCJ and Los J.

12. After the correctness of identification is established, “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”: John Beng v The State (supra).

13. In this case, the trial Judge did analyse the circumstances Sr. Leena was placed in when the robbery was committed and when she purportedly saw the appellant. The trial Judge found ultimately (in para. 2, page 73 of the Appeal Book) that the reliability and accuracy of Sr. Leena’s personal identification of the appellant left no doubt that the appellant was the person who held the knife at the time of the robbery.

14. However, Sr. Leena’s impressive performance in Court could have been aided by or could have been tainted by or was neutralised by the inherently unfair mode of identification of the appellant at the school on Wednesday 4 February 2002. The appellant was brought to the school alone and was, in that manner, identified by Sr Leena. It is not clear if the appellant was still wearing the woollen cap when he was brought to the school for identification.

15. Identification of an accused should always be fairly conducted. In the absence of other credible evidence, it is unsafe to convict on identification evidence obtained through unfair means or means prejudicial to the accused. It is not necessary to conduct an identification parade, for instance, but it is not fair to produce a lone suspect for identification purposes.

16. Ironically, the trial Judge made the same remarks in the last paragraph on page 72-73 of the Appeal Book when he said:

“Where the identifying witness is shown the accused alone as a suspect and has on that occasion first identified him or her, such identification is unreliable, and unless his or her identity is proven by other evidence, it would not be safe to sustain a conviction on the evidence alone.”

17. For the foregoing reasons, Sr. Leena’s evidence alone was not enough to sustain the appellant’s conviction. Further evidence was needed to support Sr. Leena’s evidence.

18. The trial Judge then proceeded to rely on the carpenter’s evidence on the sighting of the appellant in the school area on the day in question. On page 72, the trial Judge said:

“The evidence of Joseph Maima is crucial circumstantial evidence which supported the presence of the accused and his accomplices at the school. Some concerns about the possible loss of school fee through robbery by the accused and his accomplices were raise, and that evidence has not been seriously challenged by the defence. I accept that evidence as proof of their alleged character and proof of the concerns raised regarding their presence. It is evidence that puts the accused at the scene of the robbery shortly before it was committed, and supports the evidence of Sr Leena John.”

19. The trial Judge was entitled to believe the carpenter but when his evidence, as found by the trial Judge, is properly considered against the law of circumstantial evidence in the leading Supreme Court case of Paulus Pawa v The State [1981] PNGLR 498, serious loopholes exist in the carpenter’s evidence.

20. In the first place, the carpenter did not witness the robbery. He was, driven by his hunger, already in his...