Wellis v Kua [2008] PGDC 54; DC747 (2 April 2008)

DC747

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE [SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 609 of 2007

BETWEEN

YATEFA WELLIS
Informant

AND

LEVIT KUA
Defendant

Kundiawa: M. Gauli, PM
2008: March 31st, April 02nd

CRIMINAL – Particular offence – Unlawful Wounding – No case – Evidence inconsistent - Case dismissed.

Cases Cited:
1. The State -v-Tom Morris [1981] PNGLR 493.

References:
Nil

Counsels:
For the Prosecution - Senior Sergeant T. Goiye
For the Defendant - In person

02 April 2008

DECISION OF THE COURT

M. Gauli, PM: The defendant Levit Kua stand trial before this Court on a charge of unlawful wounding another person pursuant to s.322(1) of the PNG Criminal Code Act Chapter 262. That provision states and I quote: “A person who unlawfully wounds another person is guilty of a misdemeanour”.

1. Facts

It is alleged that on the 16th of May 2007 the defendant Levit Kua unlawfully stabbed the victim Gloria Baki with a knife on her right buttock in front of the police station at Kundiawa.

2. Prosecution’s Evidence

Prosecutor called two witnesses namely Peggy Robert and the police informant Constable Wellis Yatefa. The witness Peggy Robert gave evidence that she lives in Goroka but on the 16th May 2007 she was with her aunty Norah in Kundiawa town. Defendant with some other boys went to her aunty Norah’s house looking for Peggy Robert. Their neighbour told the defendant Peggy is not there so they left. They went there to fight Peggy. Fearing this Peggy returned to Goroka the same day. Some times later defendant Levit went to Goroka. Peggy found her in Goroka Market and she told her (defendant) that she Peggy is the wrong person she was looking for her in Kundiawa earlier. Defendant then got on a bus and she left.

3. Later Peggy Robert came to Kundiawa. On the 10th June 2007 while crossing the Okuk Highway in front of Kundawa Police Station the defendant Levit in company of a tall lady approach Peggy. The tall lady swung at Peggy. At that same time defendant Levit swung a long sharp bush knife and stabbed Peggy on her right buttock inflicting 11 centimetre deep wound. Defendant was arrested on the spot.

4. I asked witness Peggy Robert if she had another name such as Gloria Beki. She responded that she is only known as Peggy Robert not Gloria Beki.

5. The Witness Wellis Yatefa, arresting officer, gave evidence that he investigated the incident and conducted the Record of Interview only few days after the incident on 16th May 2007. That during the record of interview defendant admitted stabbing the victim Peggy for a reason that Peggy had affairs with defendant’s husband.

6. No Case to Answer

At the close of the Prosecutions case, I considered the prosecution’s evidence as presented. I find that defendant was charged for unlawful wounding on Gloria Beki on the 16th May 2007. The witness Piggy Robert gave evidence of her been unlawfully wounded by the defendant on the 10th June 2007 of which defendant had not been charged. There is no evidence before this that defendant unlawfully wounded Peggy Robert on the 16th May 2007. The second witness Wellis Yatefa gave evidence of the incident of 16th May 2007. Prosecution’s evidence is contradictory to each other, the evidence is inconsistent. It was held in the case of The State -v- Tom Morris [1981] PNGLR 493 that the Court has the discretion to acquit the defendant based on inconsistent evidence. The Court held and I quote:

“Where at the end of the prosecution’s case there are inferences inconsistent with the quilt of the accused, there is a discretion to acquit, but only where an overall view of the case leaves the Court with the conclusion that it would be unsafe and dangerous to convict”.

7. I find that defendant never assaulted Peggy Robert on the 16th May 2007. The defendant is charged for unlawfully wounding Gloria Beki on the 16th May 2007. There is no evidence that defendant unlawfully wounded Gloria Beki on the 16th May 2007. The person Gloria Beki is not the same person as Peggy Robert. The prosecution’s evidence is inconsistent. I find that the defendant has no case to answer, and I made order that the case be dismissed and the defendant discharged. Her bail be refunded.

For the Prosecution - Senior Sergeant T. Goiye
For the Defendant - In Person