Biwa Geta v The State [1988–89] PNGLR 153

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Bredmeyer J, Los J
• Judgment Date: 28 April 1989
• Citation: [1988–89] PNGLR 153
• Court: Supreme Court
• Year: 1989
• Judgement Number: SC367

Full Title: Biwa Geta v The State [1988–89] PNGLR 153

Supreme Court: Kidu CJ, Bredmeyer J, Los J

Judgment Delivered: 28 April 1989

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BIWA GETA

V

THE STATE

Waigani

Kidu CJ Bredmeyer Los JJ

2 December 1988

28 April 1989

CRIMINAL LAW — Evidence — Failure of accused to testify — Trial judge's observations on — Whether error of law.

CRIMINAL LAW — Evidence — Identification — Dangers inherent in — Relevant considerations — Whether trial judge required to enunciate — Whether relevantly critical appraisal of evidence sufficient.

CRIMINAL LAW — Appeal — Errors of law — Legal principles behind evidentiary findings — Whether trial judge required to enunciate — Whether relevantly critical appraisal of evidence sufficient.

In a judgment following the trial of an accused for armed robbery, the trial judge stated:

"I am satisfied on the evidence of identification of James Seken. His evidence was very good and clear, he was sure of his identification of the face, he said he had seen the face around before. This must help to confirm his identification of the accused Biwa Geta. I see no reason not to accept the evidence of identification presented by the State because there is no evidence from the accused that he was not there. The only evidence I have got is the State's evidence of the accused present at the holdup and later on that day one of the witnesses also identified him as one of the people in the garden further out of Lae. I have no other explanation before me, no evidence from the accused that he was not there, so the only explanation can be that the accused was there and did commit the robbery, did commit the acts involving the holdup of the Air Niugini shed with the shotgun."

On appeal against conviction,

Held

(dismissing the appeal under the proviso to s 23 (2) of the Supreme Court Act (Ch No 37) on the ground of no miscarriage of justice),

(1) The trial judge wrongly commented on, or took into account, the fact that the accused did not give evidence.

Paulus Pawa v The State [1981] PNGLR 498, applied.

R v Sparrow (1973) 57 Cr App R 352 at 357, considered.

(2) (Bredmeyer J contra) Whilst it may be helpful for a trial judge, in his reasons for judgment to advert to the legal principles involved in the dangers inherent in, for example, identification evidence, failure to do so will not of itself constitute an error of law if a critical examination of the evidence is given which demonstrates the adherence to those principles.

(3) (Bredmeyer J contra) In the circumstances, the reasons for judgment clearly demonstrated that the trial judge, bearing in mind the dangers inherent in identification evidence, had accepted the evidence of identification.

John Beng v The State [1977] PNGLR 115, considered.

(Per Bredmeyer J) A trial judge must, in his reasons for judgment, before making findings of fact advert to all relevant principles of law on matters which in jury trials would be included in the judge's summing up to the jury.

Discussions of matters relevant to law of identification.

McCallum v Buibui [1975] PNGLR 439 at 447; Townsend v Oika [1981] PNGLR 12 and The State v Andrew Tovue [1981] PNGLR 8 at 10, considered.

Cases Cited

Aron Narampan v The State (Supreme Court, SCR 356, 4 November 1988, unreported).

Callis v Gunn [1964] QB 495; [1963] 3 WLR 931.

Chiu Nang Hong v Public Prosecutor (1964) 1 WLR 1279.

John Beng v The State [1977] PNGLR 115.

McCallum v Buibui [1975] PNGLR 439.

Paulus Pawa v The State [1981] PNGLR 498.

R v Bathurst [1968] 2 WLR 1092; [1968] 1 All ER 1175; (1968) 52 Cr App R 251.

R v Murphy [1965] NI 138.

R v Payne [1963] 1 WLR 637; [1963] 1 All ER 848; (1963) 47 Cr App R 122.

R v Sparrow [1973] 1 WLR 488; [1973] 2 All ER 129; (1973) 57 Cr App R 352.

R v Turnbull and Others [1976] 3 All ER 549; (1976) 63 Cr App R 132.

State, The v Andrew Tovue [1981] PNGLR 8.

Townsend v Oika [1981] PNGLR 12.

Appeal

This was an appeal against conviction for armed robbery.

Counsel

G Langtry, for the appellant.

S Soi, for the respondent.

Cur adv vult

28 April 1989

KIDU CJ: In this appeal the appellant asks that his conviction for armed robbery be quashed as being unsafe and unsatisfactory for the following reasons:

(1) The learned trial judge failed to warn himself (or direct his mind) to the dangers of convicting where the prosecution evidence relied wholly or substantially on the correctness of one or more eye-witnesses' testimony: John Beng v The State [1977] PNGLR 115.

(2) The learned trial judge should have excluded the evidence of the identification parade, in the exercise of his discretion as it was grossly unfair to the appellant: John Beng.

(3) The evidence of the trip to Finschhafen should not have been admitted as the prejudicial effect of it outweighed its probative value. The trial judge should have exercised his discretion accordingly: Callis v Gunn [1964] 1 QB 495; R v Payne [1963] 1 All ER 848; R v Murphy [1965] NI 138.

(4) The learned trial judge should not have found the element of stealing proved beyond reasonable doubt as the finding is against the weight of the evidence, or alternatively, there was no evidence of it.

The charge against the appellant was that he with others on 24 February 1987 stole from Fred Warikar, with threats to use actual violence, K165,000 the property of Westpac Bank PNG Ltd and at the time he was armed with a dangerous weapon, namely a shotgun and was in company with others.

There is unchallenged evidence that about 12.45 pm on 24 February 1987 two men, one armed with a shotgun, entered the Air Niugini cargo shed at Lae Airport. Senior Cargo Officer, Fred Warikar, gave the following unchallenged account:

"I was at the counter with one of my colleagues, Somore Maro. He was standing on the left and at the back of us too was a forklift driver and James Seken was sitting in the office just behind from us. At the time two men came in front of the counter and one was with a gun pointing to me and the other had no gun. At that moment he told us to move two mailbags to get mailbags and because he pointed gun to my junior clerk and he moved to where company bags were and then he pointed gun to me and said we have to get blue bags, Post Office mailbags and I went with the other man, a short fellow towards the Post Office mailbags. At the time he was concentrating on getting two men outside the customs office so I started running and getting to Umane and forklift driver to run so we ran out to the tarmac."

He went on to say that the gun was a shotgun and the man holding it was tall and masked but he did not recognise him. Also he did not see the two men take anything from the shed.

From the evidence given by this witness it is abundantly clear that the two men were after blue Post Office mailbags. But there is no evidence that these two men did get these blue bags and there is no direct evidence of their carrying these bags to the vehicle in which they drove off. I shall return to this later after dealing with the identification issue.

IDENTIFICATION

There is no doubt that the trial judge based his finding that the appellant was the man with the shotgun who entered the Air Niugini shed on the testimony of James Seken. His Honour said the following in his judgment:

"One of the employees of Air Niugini, James Seken, was in an office close to and saw the holdup and ran outside to try and get some help. In the process he then tried to stop the holdup people escaping in a car and he apparently saw the face of the accused which had become uncovered at the time.

...

I am satisfied on the evidence of identification of James Seken. His evidence was very good and clear, he was sure of his identification of the face, he said he had seen the face around before. This must help to confirm his identification of the accused Biwa Geta. I see no reason not to accept the evidence of identification presented by the State because there is no evidence from the accused that he was not there."

Mr Langtry submitted that as the learned trial judge "failed to warn himself (or direct his mind) to the dangers of convicting an accused where the prosecution evidence relied wholly or substantially on the correctness of one or more eye-witnesses' testimony ...", he erred in law. The case of John Beng v The State [1977] PNGLR 115 was cited to support this submission. The principle enunciated in John Beng is well established and need not be repeated here.

It is apparent from the learned trial judge's judgment that he was well aware of the dangers mentioned in John Beng's case. He said he was satisfied with James Seken's identification of the accused. He stated that the evidence was "very good and clear" and the witness was "sure of the identification of the face" which he had seen before. This clearly demonstrates that the trial judge, bearing in mind the dangers of identification evidence, accepted the evidence of James Seken. So I cannot see where there is any error...