John Beng v The State

• Jurisdiction: Papua New Guinea
• Citation: [1977] PNGLR 115
• Date: 02 May 1977
• Court: Supreme Court
• Year: 1977

Supreme Court: Prentice DCJ, Williams J, Kearney J

Judgment Delivered: 2 May 1977

1 Criminal law—identification—tests to be applied—appeal—ground "unsafe and unsatisfactory"—inaptly construed in terms "lurking doubt" with reference to "general feel of case"

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

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

4 CRIMINAL LAW—Appeal against conviction—Verdict "unsafe or unsatisfactory"—Reasonable doubt as to safeness or satisfactoriness required—Supreme Court Act 1975 s22(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 s4(2) of the Supreme Court Act 1975 in reliance upon s22(1) of the Act.

S22(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 s22(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 DPP [1974] AC 878; referred to.

R v Sean Cooper (1969) 53 Cr App R 82, Himson Mulas v R [1969–70] PNGLR 82 at 86, Kampangio v R [1969–70] PNGLR 218 at 223 and R v Worobi Dese [1974] PNGLR 23 at 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 recognise 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 (1976) 63 Cr App R 132 followed,

The State v John Beng [1976] PNGLR 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 s4(2) of the Supreme Court Act 1975, in reliance upon s22(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.

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Prentice DCJ, Williams J:

The appellant was on 14 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 26 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 s4(2) of the Supreme Court Act 1975, in reliance upon s22(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. S4(2) appears to have been taken from a similar section introduced in the United Kingdom by the Criminal Appeal Act 1966 s4(1) (now s2(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) UK, and in Stafford v DPP [1974] AC 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 (s4(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 (UK) 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...