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State v Ate [2001] PGNC 139; N2055 (12 March 2001)

N2055

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR 502 of 1999

THE STATE

v.

JOHN ATE alias PETER JOHN ATE

Lae: Injia, J.
2001: March 6, 7, 8, 9, 12

CRIMINAL LAW – Evidence - Identification - By name - Accused known in person to police officers and Correctional officers under different names - Reliability of identification evidence of officers involved in the criminal justice process - principles discussed.

Cases cited:
John Beng v The State [1977] PNGLR 117
George Kalupai v The State SC492 (1995)
R v Turnbull [1977] Q.B. 224
R v Ramsden (1991) Crim. L.R. 295
R v Tyler & Others (1993) 96 Cr App. 332

Counsel:
N. Miviri for the State
L. Siminji for the accused

12th March 2001

INJIA, J.: The charge laid against the accused, the allegations of fact levelled against him, the evidence adduced by both sides to support their respective positions and the submissions made by both counsels are fresh in our minds and I need not re-state them. There is no dispute that on 19/11/98 at 11.00a.m., a group of 3 men held up a lone security guard named Wesley Tongin who was guarding the residential premises of one Garry Kerr at Boundary road, Lae. One of the men pointed a knife at him, then they tied him up, gained entry into the premises, then broke into the house and stole various property items valued at K109.00. Whilst the robbery was in progress, a rescue team comprising of Mr. Kerr and a police team arrived at the scene and chased the robbers. Two of the robbers escaped but one of them was caught with the knife still in his hands used in the robbery and a bilum hanging down his neck taken from Mr. Kerr’s house. As Mr. Kerr and the police team were discussing the robbery with the captured suspect, another police team arrived at the scene. This police team included CID Detective Fred Rimbao. He arrived in time to see two men fleeing from the scene. The captured suspect was handed over to him and he took custody of this man together with the knife and the bilum. The next day, Fred Rimbao conducted an interview with this same man in his office and the interview was corroborated by Const. Chris Lingau. The interview was in the pidgin language and contemporaneously typed. The record of that interview was then signed by two policemen and the man interviewed there and then. The record of interview (ROI) contains clear and full admissions of the robbery made by the man interviewed.

The knife and the bilum were shown to the man during the interview and he identified them as the ones he used or stole in the robbery. The ROI is now admitted into evidence in this trial by consent of both counsels. The knife and the bilum are also admitted into evidence in this trial by consent. And the voluntariness of the admissions contained in the R.O.I. are not in issue.

Det. Rimbao in his sworn oral testimony says the man he picked up and took into police custody on 19/11/98 and interviewed him on 20/11/98 is the person in the dock, the accused who identified himself to him as "John Ate" of Bill village, Dumun, Kundiawa in the Simbu Province. Const. Lingau said the man interviewed by Det. Rimbao is the accused man in the dock, by the name of "Peter John Ate".

The accused says in his sworn testimony that he was not the man picked up by Det. Rimbao on 19/11/98 and interviewed by him on 20/11/98. He says his name is "Peter John Ate" and he is from Kenagi village, Watabung, EHP; he is not "John Ate" of Bill village, Dumun, Kundiawa, Simbu Province, who is a different man altogether. He says he was arrested in March 1998 on a stealing charge and convicted and sentenced by the District Court at Lae, to 4 months imprisonment on 28/3/99 and at no time was he a remandee in the Buimo Jail before March 1999. The State does not dispute this prior conviction. But CIS officer Ms Jill Tulo who gave evidence for the defence said the accused is known at the CIS as "John Ate" and also as "Peter John Ate"; he is the only one in the same person, and at no time did the CIS take into custody anyone else by the name of "John Ate". And she has worked on the reception desk of the Admissions and Discharge section of the jail from 1996 up to the present time.

It is not disputed that the accused was arrested for stealing in early 1998 and sentenced to K100.00 fine in default 4 months imprisonment on 8/3/99 by the Lae District Court, completed serving in May 1999. The Lae District Court Warrant of Commitment for the stealing charge appears under the name of "Peter John Ate" of Kenagi village, Watabung, EHP whereas 3 remand warrants issued by the Lae District Court between 10/3/99 - 11/5/99 for the present offence appear under the name "John Ate" of Bill village, Dumun, Kundiawa of Simbu Province.

The issues are simple - is the accused person in the dock the same person taken into police custody by Const. Fred Rimbao on 19/11/98 and interviewed by him and Const. Lingau on 20/11/98? And is the accused person in the dock the same person known to CIS, Buimo as "Peter John Ate" or "John Ate?" In order to convict the accused, I must be satisfied beyond reasonable doubt of the positive answer to these issues. If I have any doubt, not any doubt, but a reasonable doubt, then I must acquit him. The State carries the burden of providing positive answers to these two questions to the required standard.

It is submitted for the accused that the Warrant of Commitment in respect of the stealing charge is conclusive - that "John Ate" is a different person to "Peter John Ate", who is now before the Court. He submits the records of this accused kept at the CIS does not show he was admitted to the jail before 8/3/99. He submits Const. Lingau also supports the accused’s testimony, that the accused’s name is "Peter John Ate".

It is submitted for the State that Det. Rimbao and Const. Lingau are not mistaken. He was picked up and interviewed in broad-daylight and they are not mistaken as to the identity of the man they dealt with. That it is common of accused persons to have different names and this is confirmed by Correctional Officer Jill Tulo. He submits the State has discharged its burden to the required standard.

In deciding the issues, I should start first with reminding myself of the dangers of convicting an accused person on the identification evidence of one or a number of eye witnesses in accordance with the principles laid down in John Beng v. The State [1977] PNGLR 115 which adopted the principles laid down in the English case of R v. Turnbull & Ors [1977] QB 224.

In the present case, no issue is taken of the quality of the identification evidence of Det. Rimbao, Const. Lingau and to a certain extent Correctional Officer Tulo, as to the man they dealt with in broad daylight, in the ordinary course of their duties, over some time. These three witnesses are all involved in the criminal justice system. The issue is confined to the identity of the suspect taken into police custody and interviewed and detained by law enforcement authorities, namely police officers and the Correctional officers. The principles governing assessment of the identification evidence of officers involved in the criminal justice process are settled in English Courts, from which we adopt the Turnbull principles via John Beng v. The State supra: see R v Ramsden [1991] Crim. L.R. 295, R v Tyler and Others (1993) 96 Cr. App. 332. Archibald on Criminal Pleading Evidence and Practice (1998) at page 1169, para. 14 - 25 recites those principles and I adopt them:

"The Turnbull guidelines apply equally to police officers who are identifying witnesses: Reid v. R [1990] A.C. 363, P.C. Whilst all witnesses are subject to same rules, the tribunal of fact, in assessing reliability, is entitled to take into account of the reasons given in positive identification; and a judge is entitled to draw the attention of the jury to any such reasons. An identifying witness who is involved in the criminal justice system is likely to have a greater appreciation of the importance of the identification, and so to look for some particular identifying feature. Honest police officers are likely to have their observations and recollection affected by the excitement of the situation. Provided that the usual warnings are given, the reasons scrutinised and the integrity of the witness is not in doubt, the tribunal can give effect to what is only common sense."

In the present case, the two State police witnesses and defence witness Correctional Officer Jill Tulo are not ordinary witnesses. They are all involved in the criminal justice system. Their honesty and integrity has not been challenged and therefore not in doubt. The reasons for their identification was that they were dealing with the accused in the course of their duty to apprehend, arrest, interview and detain the accused person, over some time. Their identification of the man is not just by name but by facial appearance, and in person.

The challenge to the State case is made on the difference in the name between "John Ate" and "Peter John Ate" appearing in the Warrant of Commitment, the inclusion of the name "Peter" being the only difference. But then there is not much of a discrepancy in the name either. What the Supreme Court said in George Kalupai v. The State SC492 (1995) is pertinent to this case:

"And the identification was not just by name, the use of the name Iki is not a major discrepancy, people often have other names and anyway the identification was not by name, but by identifying the accused in person regardless of what name was used".

Identification of a person by name is a relevant feature of identification but it is a reliable form of identification where a witness knows the accused well and by name and is able to recognise him and identify him by name. The same is true of identification with reference to the named person’s place of residence or origin. Where the accused is not known well previously to the witness and the witness is relying on a name given by the accused or someone else, then identification by name becomes unreliable, and personal recognition by facial appearance becomes more reliable.

In the present case, the accused was not previously known to Det. Rimbao, Const. Lingau and C.O. Jill Tulo. They only relied on the name the accused gave. Therefore, identification by name is unreliable. Identification by recognition of the face of the person or of the man they dealt with is an overriding feature of identification and is reliable. The discrepancy in the names appearing in the Warrant of Commitment and the Remand Warrants and the person’s place of origin and the different name given by Const. Lingau in Court are insignificant as minor discrepancies. Also of minute significance is the discrepancy in the files kept by the CIS where the names of other persons having no resemblance to the accused’s name(s) is attached to the accused’s file documents. The fact that no Remand Warrants in respect of "John Ate" or "Peter John Ate" in relation to the robbery charge dated prior to 8/3/99, say between 19/11/98 - 7/3/99 is to be found in the accused’s CIS’s file alone does not necessarily mean that he was not arrested and charged before 8/3/99. Likewise, the fact that there is no remand warrant in the CIS file issued prior to 8/3/99 in respect to the stealing charge also does not necessarily mean that he was not arrested and charged prior to 8/3/99. The CIS records alone are inadequate to render any definite conclusions on these sort of matters. It all boils down to who is telling the truth - the two police State witnesses, supported by C.O. Jill Tulo or the accused. I accept the evidence of Const. Rimbao and Const. Lingau which to a large extent is supported by C.O Jill Tulo. I have no reason to doubt the weight of their evidence. I accept their evidence as evidence of the truth. No motive is suggested as to why they would blatantly lie against the accused. The accused’s explanation is lacking in credibility and weight. I reject it as false evidence.

In all the circumstances I am satisfied beyond reasonable doubt that the accused is the same man who was picked up by Det. Rimbao on 19/11/98 and interviewed on 20/11/98 in relation to the robbery charge for which he stands trial before me, that he is the same man who gave the voluntary admissions contained in the R.O.I., that he is the same man who was convicted on a stealing charge by the District Court on 8/3/99 and that he is the same man who was committed to stand trial in this Court by the Lae District Court and he appeared before me. I am satisfied that his name is "John Ate" and that he is also known as "Peter John Ate". I convict the accused as charged.
____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the accused : Public Solicitor