Police v Kei [2005] PGDC 69; DC315 (5 April 2005)

DC315

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 102 OF 2004

Police
Complainant

V

Wak Kei
Defendant

Mt. Hagen: M. M. Pupaka
2005: 12th Jan; 2nd & 18th March

Criminal Law – Particular offence – Unlawful wounding – Prosecution case – Wounding not disputed – Prosecution evidence is that accused attacked principal victim without provocation – Sufficient motives disclosed for an attack – Evidence of on-going land dispute between two families – Evidence of a previous day’s assault on victim’s sister.

Criminal Law – Particular offence – Unlawful wounding – Defence – Assertion that victim was injured in a ‘group fight’ which was started by a first attack by victim and his line – Defence evidence /admission by another person that he inflicted the injuries.

Criminal Law – Particular offence – Unlawful wounding – Issues – As to which group was the aggressive party and whether admission by defence witness that he inflicted the injuries exonerates the accused – Tie in evidence as to which party was laying in wait /ambush – Both parties had motives to lay in wait for the other – Whilst the accused and company had flimsy reasons for being in the garden nevertheless the defence evidence that victim’s initial attack on accused’s brother triggered the attack on him and that the victim attacked the accused’s brother before he (victim) was wounded not sufficiently negated and is the telling factor – Enough uncertainty as to who was the aggressive party – Verdict of not guilty returned in the circumstances.

Counsel
Constable Emma Koss for the Prosecution
The Accused in person

5th April 2005

M. PUPAKA, PM: The accused Wak Kei, aged 40 of Wurup Village, Anglimp WHP, was charged with the Unlawful Wounding of one Michael Kali Puri (victim). He was charged that on 14th September 2004, at Wurup Village WHP, he attacked and wounded the said Michael Kali Puri, which is contrary to section 322 (1) (a) of the Criminal Code (the Code).

The accused entered a not guilty plea and in the trial that followed the prosecution called 4 witnesses who were the victim, one other man and two ladies. Their evidence makes up the prosecution’s case. The accused elected to testify on oath and did so. He called two other witnesses.

The Prosecution Case

The two lady prosecution witnesses’ say they and one other lady were working on their garden, which is close to their house. The ladies said upon their arrival in the garden the defendant and his brother and father and others converged upon the said garden and chased them out. In fact they say the defendant and his line attacked them for no apparent reason. The ladies recalled running toward their house, all the while yelling and calling for their own men to come to their aid. Their evidence that their own men – who included the victim, the other male prosecution witness (Ongi Pora) and a couple of others – came unarmed in answer to their call is matched by the male prosecution witnesses’ testimonies.

The latter said they and others (named) were discussing rugby league business at the victim’s house. They heard the ladies’ call for help and so they all ran toward the garden just as they were – unarmed and unprepared. They said they ran into the fleeing ladies and the chasers. The chasers ran into them too and they met headlong into each other. Then without any exchange of words the chasers (defendant and his line) attacked them. They said the defendant attacked the victim first by chopping him on the back and then on his head with a bush knife. The defendant’s father also cut him on his leg and the victim fell to the ground. It was left unsaid but the inference was that the victim was in no fit state to retaliate.

All prosecution witnesses further said the defendant and his line had arrived first and had obviously waited for them in the garden as the defendant and his line are from Wurup proper, near Fr. Robert Lak’s (former WHP Governor) place. They say the defendant and his line have no house or garden near their own, which is at the Hagen Central border. They say the defendant and his mob were just looking for trouble.

The Defence case

The accused said on the day in question he was in the vicinity tending his pigs. He said he was with his father and brother. He says they had every right and cause to be there because they had gardens there and his pigs were kept overnight there too. In fact the accused and his witnesses say the victim, together with is brothers, was waiting in ambush for them (defendant and line) and attacked them first. Consequently he and his brother and father yelled out for assistance and others arrived. There was an ensuing fight and people, including the victim, his (defendant’s) own brother and Patrick Poning (defence witness) and others were injured.

One of the two defence witnesses – Patrick Poning – said he was with the defendant and his brother and father when the victim and his line attacked them first. He said arrows were fired upon Wak Kei (defendant) and Joseph Mek’s hand was chopped. He said he himself was attacked as well and they cut him on his side and back. Patrick Poning further said he pulled of the victim’s brother’s (Peter Puri) bush knife and retaliated in kind. He said as he attacked Peter Puri ran in another direction and the victim in another. However the victim tripped on kaukau vines and fell, and that is when he (Patrick Poning) closed in and chopped the victim. This defence witness is adamant the defendant had no hand in the victim’s injuries.

The other defence witness – Thomas Wai – confirmed what Patrick Poning said. He said he came upon the scene as a result of Wak kei’s call for help but the latter must have fled before he (Thomas Wai) actually arrived because he never sighted the defendant at the scene of the fight though the fight was still in progress. This witness recalled seeing the victim cut the defendant’s brother and also saw Patrick Poning retaliate by chasing and cutting the victim. This witness does not know and cannot know which side ambushed which.

Findings on the evidence

The accused and his witnesses’ account of what transpired are diametrically opposed to what the prosecution witnesses said happened. Therefore this Court’s verdict would be based solely on assessment of credibility and demeanor of witnesses. Also one fact stands out clearly, which is that people on both sides of the antagonist groups were injured. The issue herein is therefore necessarily as to which side was the aggressor.

The prosecution witnesses have failed to disclose the fact that the victim and his side injured people from the defendant’s side. They simply said the defendant and his line ambushed them without cause. They said there was no time and opportunity, both prior to the victim being injured and after, for them to retaliate. It seems not to be true. At least the defence has, by any standard, established the fact that the victim cut and injured the defendant’s brother Joseph Mek. The witness Patrick Poning was also injured, a fact, which too stands unchallenged. All these clearly raise the issue of credibility of the prosecution witnesses in the circumstances. If the victim and his brothers were so helpless and unarmed going into the scene, who then injured the people on the defendant’s side?

On the other hand the defendant gives no sound explanation for his and his father and brother’s presence at the garden. They too seemed to have a relatively longer distance to get to the garden, compared to the victim’s line, if indeed they do have a garden there at all.

On the face of all the evidence from both sides there clearly was a fight between these two disputing families. So whose group was the aggressor side? Was it the defendant’s side because they had no good cause to be where they were so early in the morning and obviously in numbers? Or was it the victim’s side because they fail to disclose and acknowledge that they too injured people on the defendant’s side, which apparently means they have seemingly not been truthful about going into the scene unarmed?

Then there is the sworn attestation by defence witness Patrick Poning. He owns up to being the one who wounded the victim Michael Kale Puri. Because Patrick Poning was in court as defence witness rather than as an accused person, he could not be thoroughly examined on the motives but he did give a plausible explanation for his actions. He said he was chopped and wounded first so he chased and retaliated upon his attackers, and he did so well within the period of the ‘heat of conflict’.

In the circumstances I must find that there is a tie in the evidence as to which party was laying in wait or ambush. By the evidence both parties seem to have had motives to lay in wait for the other. Whilst the accused and company had flimsy reasons for being in the garden nevertheless the defence evidence that victim’s initial attack on accused’s brother triggered the attack on the victim is not sufficiently negated by the Prosecution. The defence evidence that the victim attacked the accused’s brother before he himself (victim) was wounded is not sufficiently negated, which consequently is the telling factor. There is enough uncertainty created here as to which side was the aggressive party. In the circumstances, on the totality of the evidence, any one of the two sides could have been the aggressive side. There is simply not enough conclusive and exclusive evidence that defendant’s side was the aggressor. Further, to put it another way, the evidence is such that the possibility of the victim and his side being the aggressive party cannot be safely discarded.

Ergo it is decidedly unsafe to record a conviction against this accused. Consequently a verdict of not guilty must be returned in the circumstances. I must find the accused not guilty as charged. He is acquitted and discharged forthwith and his bail money shall be refunded.

I wish to address and make one other matter thoroughly clear, both for the record and for the public good. It is consequential to this matter.

The defendant and his witnesses have said they would press their own charges against the victim and his brothers later, once this current case is completed.

However the trial in this case, against this accused, has fully indicated and highlighted the impasse as to which side was exclusively at fault. Therefore it benefits no one to restart another criminal case against anyone over the fight between Wak Kei and Michael Kale Puri’s line at Wurup on the 14th of September 2004. Whilst this Court would be the same court that may, in all probability, deal with any such future case, there in fact is a greater concern that the judicial process may be abused. The process may be used as a weapon of convenience, to be used as a means of prolonging or nurturing tribal or family or personal conflicts and spites. In the circumstances there is a likely hood of that happening if these parties are allowed a free hand.

Consequently, by authority of the judicial powers that are instantly available to this Court and by authority of my powers as Senior Provincial Magistrate (SPM) I prohibit and debar everyone aligned or associated to either of these two groups, either individually or collectively, from putting into motion or progressing or initiating any fresh criminal proceedings against anyone in relation to the fight that occurred between Wak Kei’s line and Michael Kale Puri’s line at Wurup on the 14th of September 2004.

Constable Emma Koss: Complainant
In Person: Defendant