The State v John Beng [1976] PNGLR 471

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ
• Judgment Date: 14 October 1976
• Citation: [1976] PNGLR 471
• Court: National Court
• Year: 1976
• Judgement Number: N65

Full Title: The State v John Beng [1976] PNGLR 471

National Court: Frost CJ

Judgment Delivered: 14 October 1976

1 Criminal law—identification—dangers to be borne in mind in the acceptance of identification evidence—applicability to the circumstances of particular case

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

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

On the trial of an accused on a charge of unlawfully wounding a young woman, the identification of the accused (who denied responsibility) by the young woman, was the only real matter in issue.

Held:

(1) Where evidence of identification is relevant, the court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the court.

R v Preston [1961] VR 761 at 762 adopted and applied.

(2) Where the identification relied upon is that of a single witness it is proper to be mindful that the identification "was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice", and the Court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.

R v Preston [1961] VR 761 at 762–763 adopted and applied; R v Wright (No 2) [1968] VR 174; R v Boardman [1969] VR 151; R v Long (1973) 57 Cr App R 871; R v King (1975) 12 SASR 404 and Leary v R [1975] WAR 133 referred to.

(3) Being satisfied that the evidence of the single witness, the young woman, was both truthful and accurate, and mindful of the inherent dangers, it could be said in the circumstances that the accused was criminally responsible for the attack upon the young woman.

Trial.

The accused was charged upon indictment with unlawfully wounding a young woman, and pleaded not guilty. The only matter at issue in the trial was the identification of the accused as her assailant, by the young woman concerned.

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Frost CJ: The accused is charged upon indictment that on 26th June, 1976 in Papua New Guinea he unlawfully wounded a young woman, Miss Jenny Jee, to which he pleaded not guilty.

It is not disputed that on the late afternoon of that day, a Saturday, Miss Jee, who is a bar attendant employed at the Bulolo Bar of the Papua Hotel, Port Moresby, whilst alone in the bar was attacked by a man who struck her twice on the head, each time with a bottle.

The only issue in the case is as to whether it has been proved that the accused, who was employed as an apprentice chef at the hotel, was the assailant. He has throughout denied responsibility.

The Bulolo Bar is situated on the first floor of the hotel. For its purpose it is rather a small room, fitted along three walls with raised tables at which customers sit on high stools. The bar, which is placed along one wall with a narrow opening to the room on that portion of the bar nearest the door, at its nearest point is about twelve to fifteen feet to the door.

Whilst the bar is fairly well lit with fluorescent strips the lighting of the rest of the room is dim. There is a window in the door through which it is alleged the accused looked before coming into the room. It is placed in a rather high position from the floor and the full face can only be seen from inside the bar if a man outside looking in from the hallway were of average height—which the accused certainly is—and raised himself on his toes.

The facts of the case are that after opening the bar at about 4.00 pm, Miss Jee had as her only customers two ladies who sat at the table behind the door. In this position they could not be seen by anyone looking through the window or in the act of entering the room because the table is behind the door as it opens. One of these ladies, Mrs McInnes, who was called as a witness, said that she and her friend arrived at the bar shortly after 4.00 pm and left about 5.00 pm, and there is no reason to doubt this evidence.

It was during this period that the assailant first entered the room. Miss Jee said she saw the accused's face at the window, from below the mouth up, looking into the bar and around the room so far as he could see. He did this for some little time before coming into the room. She then recognised him as an apprentice chef at the hotel whom she had seen once before on a pay–day as he came from the dining room into the foyer where the staff were waiting to receive their pay. She knew all the staff working there and was told that he was an apprentice cook after inquiry of another member of the staff. She was sure that the accused was the man. She said that the accused was wearing long trousers, dark in colour. She had no recollection as to the colour of his shirt. The only physical characteristics she mentioned were that he was a Highlander of light skin and typically short hair. She was able to say he was a Highlander because she was born in Kavieng and has lived most of her life in Papua New Guinea.

Having entered the room he came towards her at the entrance to the bar and, according to her evidence, said the single word "apron" whilst gesturing with both hands about his waist, indicating what he was seeking. Miss Jee told him the housekeeper was not in that day, she did not look after aprons, and he should go to the ironing room and get one there. Both the housekeeper's room and the ironing room are on the first floor, the housekeeper's room being nearly opposite the bar. The man then turned and left. She said the same man returned about ten or fifteen minutes later after the two customers had gone. At this time she was turned away from the bar and did not notice him until he was inside the bar. He walked, she said, in haste, to the opening of the bar, and came behind the bar where she was standing. They were thus standing face to face. Being somewhat scared she asked, "what do you want". It was significant, as will appear, that he took so long to answer that she said she did not know whether he was scared or anything. He then said, "mi laikim yu", and at the same time reached for a cognac bottle which was on a shelf behind the bar. Raising it above his head he then hit her on the forehead. The bottle was shattered and the contents were spilt upon her. As she fell to the floor the man grabbed the jeans she was wearing, causing them to be torn down the seam near the fly, and also in a shorter tear near the waist. She began to scream.

At this stage she was covered with blood and cognac. With her back turned to him as she picked herself up the man hit her again, this time with another bottle, on the back of the head. Apparently it was her continued screams that caused him to flee. It was the Manager, Mr Newman, who, hearing her screams from the floor below, ran up the stairs to her aid and who then made arrangements for her to be sent to hospital by ambulance and for the police to be summoned. Mr Newman fixed the time as 5.30 pm or 5.35 pm and again there is no reason not to accept his estimate of time.

Later that night, having apparently told the police that it was one of the apprentice chefs who was responsible, the accused and the other apprentice chef, Jack Paia, were taken to the hospital and placed together before Miss Jee's bed. On being asked to identify the man who attacked her she at once indicated that the accused was the one responsible. However, after lengthy questioning, the accused was taken home. On Wednesday, 30 June 1976, at the Boroko Police Station a record of interview was taken and the accused charged and taken into custody.

Two days later an identification parade was arranged at the Boroko Police Station and the accused was asked to take...