Jimmy Ono v The State (2002) SC698

• Jurisdiction: Papua New Guinea
• Date: 04 October 2002
• Citation: (2002) SC698
• Docket Number: SCR No 7 of 2002
• Court: Supreme Court
• Year: 2002

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

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By the Court: On 19 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 summarised 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 (2001) SC666 and Vaii Rocky Maury v The State (2001) 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...