State v Pale [2022] PGNC 92; N9553 (25 January 2022)

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CRIMINAL LAW - Verdict – Armed Robbery - Section 386 (1) (2) of the Criminal Code – Police Identification Parade is Unfair on the Accused and is Flawed - In court Identification not Reliable – State had not proven its case beyond a reasonable doubt – Not Guilty Verdict – Acquittal - Discharge

1. Where there is no corroborating evidence in supporting the element of identification, the State must prove beyond a reasonable doubt that the only evidence on the identification of a stranger is reliable and cannot be mistaken or is ‘not only honest but is also accurate’ R. v. Preston [1961] VicRp 115; [1961] V.R. 761 at pp. 762-763.

2. In relying on the evidence of a prior and out of court identification evidence, the process involved in the conduct of that identification must be fair on the accused.

3. In a police identification parade, where a suspect was placed against others who bear no physical resemblance to him, where the suspects were not told of their Constitutional right to remain silent and where proper records of the process involved was not kept and produced, the identification parade was unfair on the accused and flawed. (The State v Sela Gipe (2000) N2058, Injia J; State v Dotaona [2006] PGNC 67; N4474 (14 August 2006).

4. The evidence of in-court identification of the accused is not reliable when reliance was had on an out-of-court Police identification parade that was unfair and flawed.

Penalty: DC8000.html#_ftn2">[2]Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2)DC8000.html#_ftn3">[3] DC8000.html#_ftn4">[4]If a person charged with an offence against Subsection (1)–
(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person, he is liable subject to Section 19, to imprisonment for life”.

No	Document	Exhibit No
1	Record of Interview (ROI) Original Pidgin version dated 13^th May 2017 English version dated 13^th May 2017	“A” “B”
2	Statement of Asley Waula dated 17^th July 2017	“C”
3	Statement of Dabada Kobua 21^st June 2017 Photographs of Motor Vehicle	“D” “D1-D5”
4	Motor Vehicle, Registration Number BDR 889 Registration Certificate, date issued: 14^th June 2017	“E”
5	Certificate of CTP Insurance and Policy Registration for Motor Vehicle, Registration Number BFD 410, Date issued: 15^th August 2016	“F”
6	DSK Automotive Letter (date not legible)	“G”
7	Police Indemnity Receipt dated 31^st May 2017	“H”
8	Boroko Motors MV invoice for payment of Motor Vehicle, dated 24^th September 2012	“I”
9	Statement of Delsey J dated 21^st June 2017	“J”

Paul Kirua
9. This witness is a police officer who was present at the site of the abandoned stolen motor vehicle. His evidence is that they found a mobile phone belonging to the robbers in the abandoned motor vehicle. The phone was ringing and he answered it. He pretended to be one of the robbers and asked the caller to come to where he was. The caller was saying that he was bringing a fake number plate to put on the stolen motor vehicle. After conversing for a while and directing the caller to come to where the witness was, the caller was still on the phone talking when the witness approached him and apprehended him. The witness described the caller he had apprehended as a person having rasta or that his hair was twisted.
10. The witness apprehended the suspect by grabbing him as soon as the suspect went closer to him. The witness held the suspect tightly and led him into a taxi. The witness took the suspect to another location where a parked police vehicle was. He was then taken into the Police vehicle and taken to the Hohola Police Station. When asked if he could identify the suspect, he said it was a long time and he did not think he could be able to identify him.
11. In cross-examinations, the witness agreed that the suspect had been in his custody for a considerable amount of time from apprehension to when he was transporting him in the taxi to the Police vehicle and then to the Police Station. He however said it had been four years now and he would not be able to remember the suspect’s face. He did not make any identification in court.
Delsey Levi
12. This witness is the complainant and the driver of the stolen motor vehicle. She described the suspect who approached her on her side, the driver’s side of the vehicle as a person with rasta. She also described him to be short and of stocky built. She said she can be able to identify him and the other person who also went to her side at the time of the hold-up.
13. After one of the suspects was apprehended, she said she was told to go to the Hohola Police Station to identify that suspect. She said at the Police station she identified the suspect as the same person who went to her side of the vehicle during the hold-up. She described that suspect to be of the same stocky built with a short rasta as the person who held her up.
14. When asked to identify the suspect if he was in the court room, the witness pointed to the accused, who, on an application by his lawyer was told to sit away from the defendant’s dock. The accused was seated at the public gallery. The witness walked towards the accused sitting in the public gallery and easily identified him, saying this was the same person she had identified on earlier occasions. When pointing to the accused in the court room, the witness said this was the same person who approached her at the time of the commission of the offence, he was the same person the witness had later identified at the Hohola Police Station, and she said he was the same person that she first identified in court when the matter went to an initial trial before another judge.
15. In cross-examination the witness did agree that she was traumatised and had only a fleeting glance. The reason why she was able to identify this accused as the suspect was because the suspect went close to her at the driver’s side.

16. The defence called the accused who gave sworn oral testimony. He denied the allegations. He said that at the time of his apprehension and arrest he did not have rasta and it was not him that the witness had identified. His counsel referred him to Defence Exhibit “D1”, which is the Charge Summary Sheet contained in the Committal Depositions. It bears a photograph of the accused without any rasta. The accused said that this photograph depicted a portrait of him taken when he was apprehended and detained. He said the photo confirms his story that at that time he did not have any rasta. In cross-examination, the accused maintained that he did not have any rasta at that time.

17. There is no dispute that a motor vehicle driven by the complainant was stolen from her by armed suspects at Tokarara. What is disputed is the identification of and consequently the participation and involvement of the accused. The discussion here is narrowed down to the law and its application on identification evidence.
Case Authorities on Identification
18. In the case of Beng v The State v [1976] PNGLR 471, the Court held that where evidence of identification is relevant, the court should be mindful of the inherent dangers. There is no rule of law that says that the evidence of one witness is insufficient, nor is there any rule of law that says that there must be a police parade for the purpose of identification. Also, there is no rule of law that says that in every case, a warning ought to be given (to the jury). What the law is though, is that it all depends upon the circumstances of the case before the court. R. v Preston [1961] VicRp 115; [1961] V.R. 761 at p. 762 adopted and applied.

19. The Court in Preston (supra) further held that where the identification relied upon is that of a single witness it is proper to be mindful that the identification “was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice”, and so the Court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification. R. v. Preston [1961] VicRp 115; [1961] V.R. 761 at pp. 762-763 adopted and applied; R. v. Wright (No. 2) [1968] VicRp 17; [1968] V.R. 174; R. v. Boardman [1969] VicRp 17; [1969] V.R. 151; Reg. v. Long (1973) 57 Cr. App. R. 871; The Queen v. King (1975) 12 S.A.S.R. 404 and Leary v. The Queen [1975] W.A.R. 133 referred to.

20. On Police identification parades, in the case of State v Among [2007] PGNC 11; Cr No 719 of 2003 (21 May 2007), the court held that a witness should not be told that a suspect is in an identification parade; there is no way of determining whether or not the witness’s memory had been corrupted by the knowledge that a suspect was in the parade and it is unsafe to rely on the identification made in those circumstances when there is no other evidence to support it.

“8. The law is that a witness should never be told that a suspect is in the identification parade: See State v Thomas Some (1982) N366 (M.) Kidu CJ. One of the reasons is simply that, the witness may see someone in the identification parade with some features that they recall, but they have a real doubt which would prevent positive identification. If that person is the only one in the line-up with those characteristics, and the witness believes that the suspect is in the line-up, the witness can easily persuade himself that the "possible", identification, is a definite identification. And of course, once the identification is made, usually the next time the witness sees the person identified they are in the dock and the witness is in the witness box. This only confirms to the witness that they have made the right identification.”

“9. The psychology of memory and identification is very complex. Psychologists have repeatedly demonstrated how easy it is to corrupt memory and to fool recollection of events and people. An identification parade is a double-edged sword. Properly conducted, it is strong evidence of the proper identification of the accused. But any error in the conduct of the identification parade raises the possibility of corrupting the recollection of the witness and of thus devaluing what might have otherwise been a very good opportunity of observation.”

22. In the case of State v Robert [2022] PGNC 6; N9395 (21 January 2022) the Court expressed that there is no provision in the Evidence Act (Ch 48) or the Criminal Practice Rules 1987 that provides for dock identification. It has been a practice adopted from the common law. At paragraphs 6 and 7, the court held that in-court identification, or dock identification, whilst admissible should be accompanied by prior identification in the form of photo boards or identification parades. Without such prior identification, the in-court identification or dock identification has very little probative value, especially when it is identification of a stranger: R v Doyle [2010] QCA 204, Festa v The Queen (2001) 208 CLR 593 and R v Savage [1994] QCA 020 and Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395; and the proper basis of dock identification, is not to have the witness identify the accused as being the perpetrator in the first instance but rather to give a witness the opportunity to confirm in court the previous identification or retract it: R v Doyle [2010] QCA 204 at paragraph 39 and R v Savage [1994] QCA 020 per Pincus JA.

23. In the case of State v Dotaona [2006] PGNC 67; N4474 (14 August 2006), at paragraph 29, the Court said there was conflicting evidence as to the procedures used and there was no contemporaneous record made of what happened. It is not necessary for the police to conduct an identification parade but if they choose to conduct one it must be fair to the accused (The State v Sela Gipe (2000) N2058, Injia J).
24. In the case of State v Thomas Some (1982) N366(M) Kidu CJ indicated that if the police conduct an Identification Parade, a number of principles shall apply: A witness should never be told that suspects are in the parade; a witness should merely be asked if he or she recognises anybody; all those in the parade should bear the same characteristics as the description given of the suspect; suspects should be advised of their right to remain silent and the conduct of the parade must be fair to the suspects. His Honour stated that whilst the police have a duty to ensure that those who commit offences are caught, they also have a duty to ensure that an innocent man is not convicted because of an unfair identification parade or a defective identification.

Application
Is the State’s identification evidence accurate and reliable?

25. I accept the evidence of the complainant as credible on the manner in which the purported Police identification parade was conducted and on how she had made her identification. I am mindful that whilst her evidence on how she was able to make an identification was credible, it may be mistaken. The witness’ evidence is that she was told that a certain suspect was taken by the Police to the Hohola Police Station. She was asked to go to the Police Station and identify the suspect.

26. At the Police Station, the suspect was with four others and he was the only person who had rasta. From the complainant’s evidence, the suspect therefore, had already been singled out by the fact that he was the only one with rasta. The other suspects did not bear the same physical appearances, resemblance and or characteristics as the suspect when the witness made the identification. The Court, therefore, considers that the conduct of that police identification parade at that time at the Hohola Police Station was unfair on the suspect. It would also be unfair on this accused in this trial as the complainant had identified him in court as that same person she had identified at the Police Station. In the absence of other credible and corroborating identification evidence, the court would not place much weight on this identification evidence.

27. In the complainant’s evidence, it was unclear as to whether the four other suspects were told to stand in a parade line up together with the accused. There was no evidence called from any police officer regarding the manner in which the purported identification parade was conducted and recorded. The only evidence that the State offered though and which was against their case was that the suspect was the only person who had rasta when he was presented to be identified. The complainant’s evidence did show that there was lack of proper processes being followed during the conduct of the identification parade. This resulted in an identification parade that was unfairly conducted on the suspects at that time. It therefore becomes unfair on this accused as the State witness had identified him by relying on the identification evidence from that purported police identification parade. Consequently, the possibilities for a mistaken identity are real as the manner in which the parade was conducted makes the identification evidence unreliable. In the absence of other credible and corroborating evidence, any identification of the suspect then and now does little to prove the State’s allegations of the accused’s involvement.

28. The accused denied involvement in the allegations. Defence ran its case on their story that the accused did not have rasta at the time of his apprehension. They say he was not that person the complainant had said she saw. Nor was he the person that Policeman Kirua said he apprehended. Defence relied on Defence Exhibit “D1” which is the Police Charge Sheet contained in the committal depositions. The Charge Sheet contains a photograph of the accused taken by the police upon his apprehension and detainment for this alleged offence. The photo depicted the accused having no rasta when he was detained. The State had not called rebuttal evidence. The State did not have any basis to submit that the accused would have had time to trim his rasta. As a result, I accept the accused’s version that when he was apprehended, detained and had his photo taken, he did not have rasta. This now creates doubts in the mind of the Court that the complainant had accurately identified the accused. Consequently, the Court finds that the complainant’s identification of the accused had been mistaken.

29. In court, the accused was identified by the complainant without much trouble even though, on an application by his lawyer, he was granted leave to be seated away from the defendant’s dock. When pointing him out and identifying him from among the members of the public, the complainant said: “he is the same person I identified at the first trial. He is the same person I identified at the Hohola Police Station and he is the same Rasta person who approached my side of the vehicle and held me up.” This court warns itself that mistakes have been made in the past when identifying strangers. In this instance, in the light of the findings above, and where I am mindful that the Police identification parade was unfair on the suspects and the accused because it was flawed, and where the complainant’s identification was not corroborated by other credible and reliable identification evidence, I also do not give much weight to the complainant’s in-court identification of the accused.

30. Whilst dock or court room identification can be admissible, they should preferably be accompanied by other prior identification in the form of photo boards or identification parades. (Robert (supra) adopting Doyle (supra) case applied. I also add that the processes involved in those prior identification methods must be properly recorded and be fair on the accused or suspect at that time. There is no evidence that the State witness did make a positive and credible prior identification from a photo board identification method. The purported Police identification parade had been unfair and flawed. Consequently, the in-court or dock identification that was made in the previous trial and now in this trial is of very little probative value. This is especially so when the witness was attempting to identify a complete stranger whom she had very little time to look at. Whilst making that identification, it was her evidence that she was traumatised as she was being held up. Making a positive identification under such circumstances would have been difficult.
Are there any other Reliable and Corroborating Evidence?

31. Apart from the complainant, policeman Paul Kirua’s evidence was that he had apprehended a suspect who had rasta. He was involved in taking that suspect to the Police Station. However, despite his training and years of experiences as a police officer, and considering he had more time to take a good look at the suspect, in court, he still could not make any identification at all. Consequently, there is no reliable and corroborating evidence from the other State witness on the complainant’s identification evidence of the accused.
Conclusion

32. The court finds that the State had not proven its case beyond a reasonable doubt on the element of identification of the accused. The quality of the identification evidence is poor and unreliable and there is no other evidence which supports the correctness of the only state witness’s’ identification evidence.

33. The court finds that the State had not proven its case beyond a reasonable doubt that the accused participated in the armed hold-up at Tokarara on the 30^th of May 2017. Consequently, this court finds the accused not guilty as charged for the offence of Armed Robbery under section 386 (1) (2) (a) (b) of the Criminal Code. This Court acquits him of that charge.

Verdict accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendant

National Court of Papua New Guinea

State v Pale [2022] PGNC 92; N9553 (25 January 2022)