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Mini v The State [1987] PGLawRp 515; [1987] PNGLR 224 (29 June 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 224 - Michael Mini v The State�

[1987] PNGLR 224

SC339

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MICHAEL MINI

V

THE STATE

Waigani

Kidu CJ Kepi DCJ Woods J

28 May 1987

29 June 1987

CRIMINAL LAW - Evidence - Identification - Sufficiency of evidence - Process of identification grossly unfair - Accused identified by police prompting when alone - Conviction quashed.

Following a rape incident in which the victim bit the fingers of one of the assailants, the victim was taken to a nearby plantation where she failed to identify either assailant. Three days later she attended at the local police station where the accused, with a bandage on his finger, was in police custody; when asked to identify the accused she identified him as one of the assailants. About a month later a line up was held at the police station and the victim again identified the accused.

On appeal against conviction,

Held

The appeal should be allowed as there was insufficient evidence of identification: the process of identification, involving, as it did, prompting by the police to identify one person only, and the failure to identify the accused at the plantation shortly after the incident, was so grossly unfair to the accused as to be disregarded.

Appeal

This was an appeal against conviction and sentence on a charge of rape.

Counsel

A Robinson and T Tamusi, for the appellant.

G Toop, for the respondent/State.

Cur adv vult

29 June 1987

KIDU CJ KEPI DCJ WOODS J: On 7 May 1986 the appellant was convicted of the rape of one Elizabeth Mathews on 8 July 1985. He is appealing against the conviction on the ground that there was insufficient evidence of identification of the appellant by the prosecutrix.

This appeal thus raises the lone issue of identification � that is, whether the appellant was properly identified by the prosecutrix as one of the two men who raped her on the afternoon of 8 July 1985.

The prosecutrix�s evidence as contained in the learned trial judge�s judgment is as follows:

�About 3 pm on 8 July 1985 she caught the bus at Kokopo for Raniola Plantation. When she got down from the bus she started to walk along the road to Raniola Plantation. She came upon two men sitting by the side of the road drinking beer � she thought they looked like Highlanders. One was short, dark skinned with front teeth missing, the other was taller and light skinned. As she passed they said good afternoon and she replied. They asked her for some lime, she gave them some lime and then continued walking. The short dark man came up behind her, grabbed her by the hands and held them behind her back, he then called the accused who also held her hands behind her back. The short dark man then grabbed her around the neck and pushed his fingers into her mouth to stop her from yelling out. She bit the fingers and made them bleed. The two men then pulled and dragged her to the bush and forced her to the ground. The prosecutrix�s lap lap, pants and bras were ripped off. The short dark man then forcefully had sexual intercourse with her, while the accused held her two legs. The accused then had sexual intercourse with her while the short dark man sucked her breast, the accused also sucked her breast. After the accused had finished, he sat for a while and then had sexual intercourse with her a second time. The short dark man grabbed her bag containing K28 and ran off. The accused then pushed her to another place, he tore her blouse, she pushed him away and then ran off to her aunty�s house crying. She then went and reported to the police at Kokopo. Later the same day she went with the police to Raniola Plantation and went to several houses to see if she could find the men who attacked her, but did not find either of them. About three days later when she went to the CIB office at Kokopo, the accused was sitting in the office with other police. One of the policemen asked her if he was the man who attacked her, referring to the rape incident on 8 July and she identified the accused. She said she recognised him by his face. About a month later a line up was held at the police station and she again identified the accused.�

The appellant in his statement from the dock said that he was at the plantation when police brought the prosecutrix:

�At the plantation we cooked some food � while having that food the police came and the woman came up.

The police said to the woman have a look at the people and see who is the one who had sexual intercourse with you. The woman had a look and she did not identify the person who had sexual intercourse with her.�

This was some hours after the rape and she was unable to identify the appellant as one of the two men who had raped her that afternoon.

Three days after the rape she was taken to the police station. The appellant had been arrested and was at the station, in the CIB office. Her cross-examination shows how the identification took place at this time:

N2>�Q.���� When you saw him in the CIB office?

N2>A.������ The accused was in the CIB Office when I walked in. There were two CIB and a policeman in uniform � no one else.

N2>Q.������ When you went into CIB office did the police ask you if he was the man who attacked you?

N2>A.������ Yes.

N2>Q.������ When you saw the accused in the CIB office, did you look at his fingers for a bite?

N2>A.������ No.

N2>Q.������ Did you see he had a mark on his right thumb?

N2>A.������ I saw he had a bandage � might be a sore.

N2>Q.������ It was seeing the bandage that led you to believe that he attacked you?

N2>A.������ Yes.�

So a man with a bandage on his right thumb, a Highlander, was in police custody. The prosecutrix went into the police station and was asked if the man was one of those who raped her. She identified him because of the bandage. She had bitten one of her attackers on his fingers. She thought quite clearly the appellant was the one.

This whole process of identification was grossly unfair to the appellant. First, the complainant was prompted by the police to make the identification and secondly, the appellant was the only person to be identified. No one has to be a mental giant to conclude that the chances of the appellant being identified were nothing but great.

This identification at the police station in such a weighted situation must be looked at in the light of the failure to identify at the plantation shortly after the incident.

The failure to identify shortly after the incident, with the grossly unfair situation at the police station, must lead the court to disregard all the identification evidence insofar as it points to the accused. This means that there is insufficient evidence of identification of the appellant.

We find therefore that the trial judge was in error in accepting this evidence of identification.

We therefore uphold the appeal and quash the conviction and sentence of the National Court.

Appeal allowed

Conviction quashed

Lawyers for the appellant: Public Solicitor.

Lawyers for the respondent: Public Prosecutor.