Police v Hariki [2021] PGDC 56; DC6009 (28 May 2021)

DC 6009

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 508 of 2021
BETWEEN

POLICE

Informant

AND

ROSS HARIKI
Defendant

Lae: L Wawun-Kuvi

2021: 28 May

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- SUMMARY PROCEEDINGS- Summary Offences Act, section 6-Unlawful Assault-Whether the Complainant was assaulted and if so who assaulted the Complainant? Application of rule in Browne v Dunn and logic and common sense.

PNG Cases Cited
Kitawal v State [2007] PGSC 44; SC927 (22 February 2007)
State v Taroah[2004] PGNC 104;N2675
Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
James Pari and Tine Bomai Kaupa [1993] PNGLR 173)

Overseas Cases Cited
Browne v Dunn (1893) 6 R 67 (HL)

Legislation
District Court Act
Summary Offences Act

Counsel
Police Prosecutor Sergeant Sakarias Albert

Lawyer for the Defendant, Mr Emmanuel Mambei

28 May 2021

VERDICT

L Wawun-Kuvi, Magistrate:

1. 17 January 2021 is a day that most of us will find insignificant. For Constable Ross Hariki and Corporal Clive Dimura, this is a day set in stone. One a policeman, another a solider. Given any other circumstance, these two men could be best friends; sharing not only an affiliation towards the disciplined forces but cultural ties, as one hails from Northern Papua and the other Eastern Papua. Both living and working in Morobe.
2. There was nothing extra ordinary about that day. Both men going about life as usual. Nothing that would have led them to think that the early hours would culminate into violence.
3. When Clive Dimura went out on the night of 16 January 2021, he went out to have a good time with friends. Ross Hariki put on his uniform and went to serve the country that both he and Clive Dimura made an oath to serve loyally.
4. Clive Dimura starting his night off at Eddie’s Bar and then made his way across to Swing Bar. Ross Hariki was patrolling the streets of Lae when he and his unit received a call to go across to Swing Bar.
5. Clive Dimura after a few drinks decided to go and have a smoke at the smoking area of the bar. That area was in fact, the gated entrance of the bar. Whilst he was sitting there he observed police officers chasing people. He felt a sense of sympathy towards them and uttered some words. It was that moment of serendipity that bound the men’s fate.
6. Ross Hariki heard those words and decided to confront Clive Dimura.
7. What transpired between that moment and Clive Dumura arriving at the police station, is what I am left to decide?

ALLEGATIONS

8. It is alleged that during the relevant morning, police officers arrived at the Swing Bar at Eriku. The defendant is a member of the Sector Response Unit or SRU.
9. On arrival, police officers started clearing people in front of the bar. The complainant then expressed words to the police in sympathy of the people that were being cleared.
10. The defendant then grabbed the complainant and he and his team members proceeded to punched and kicked the complainant.
11. As a result of the attack, the complainant received multiple injuries which required medical attention.

UNDISPUTED FACTS

12. The following facts are not in dispute:
    • That there were a lot of Sector Response Unit members present.
    • That the policemen were chasing opportunist, betel nut sellers and members out of the public gathering in front of the Swing Bar at Eriku.
    • The complainant uttered words directed at the police officers.
    • The defendant pulled the complainant towards the police vehicle.
    • The complainant did not want to get into the police vehicle.

THE ISSUES

13. The issues for the Court to determine are?
    • Whether the Complainant was assaulted?
    • And if so, who assaulted the Complainant?

APPLICATION OF RELEVANT PRINCIPLES IN LAW

14. As I considered the evidence, I have applied various principles in law that assist in the determination of weight, credibility and truth. These principles are established and accepted in our jurisdiction.
15. Kapi DCJ as he was then, in James Pari and Tine Bomai Kaupa [1993] PNGLR 173 stated as follows:

“Therefore, it is important to assess the evidence of witnesses carefully. It is not sufficient to simply gloss over evidence of witnesses and believe or not believe them. There are guide-lines to be followed. For the purposes of this case, I adopt the words of Wilson J in State v Voeto N134 (1978) at p 4:

"In weighing up the evidence of a witness in this trial (as in any trial) I am entitled to take into account his interest, or lack of it, in the result of the case; his demeanour in the witness-box, i.e. the way he gives his evidence (any hesitation, failure to answer, shiftiness or the like); the extent of his literacy (something which is important in a trial such as this); the degree of his sophistication; his manner of testifying; the problems of interpretation; his ability to understand the notions and concepts about which he is called upon to testify; his apparent candour or lack of it; whether he is supported or contradicted by other facts and circumstances which are found to be established on the evidence; and whether his evidence is consistent or inconsistent with other evidence, i.e. whether he has kept to the same story."

Rule in Browne v Dunn

16. I have applied the rule in Browne v Dunn (1893) 6 R 67 (HL), more particularly the clarification laid out by the Supreme Court in Kitawal v State [2007] PGSC 44; SC927 (22 February 2007) in that:
    • “The rule in Browne v Dunn (which requires the accused’s principal defences to be put to the prosecution witnesses in cross-examination) requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them.
    • The requirements of the rule in Browne v Dunn vary according to the circumstances of the case and will be lessened if, in fact, prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview that has been admitted into evidence.
    • A defence counsel’s failure to adhere to the rule in Browne v Dunn does not necessarily result in the conclusion that all defences are a recent invention, unreliable and should be rejected.”

Logic and Common Sense

17. Logic and common sense is one of other factors that are applied to determine whether a witness should be believed or his version accepted. This approach has been adopted in many cases in our jurisdiction^[1].

THE PROSECUTION CASE IN CHIEF

Clive Dimura

18. On the morning in question, the complainant says that he was standing at the entrance of the Swing Bar smoking. Whilst he was there he saw policemen swearing at members of the public and walking around. He says that he said to himself words to the effect “turangu ol man meri, hau paitim ol”.
19. While he was sitting there the defendant then pushed the outer door and started punching him. He pulled him out of the club and kept punching him. His friends then joined in. He was holding onto his collar. He asked the defendant “Memba sampla samting na u pulim mi igo autsait”. He was blocking all their punches. He assumed that because he was blocking their punches that must have provoked them to attack him with more ferocity. He was kicked onto the ground. He blocked his face. He started to feel that his body was being attacked my objects like iron. He was lying for a while on the ground. Someone hit him hard on the head. That is when he started losing consciousness. He then realised he was on his feet and was dropped next to some other men. He was trying to get his bearings and figure out where he was, when someone kicked him hard on the mouth. He lost consciousness. He cannot recall how he ended up at the police station.

Captain Kep’s evidence

20. Captain Kep is the army dentist.
21. She has been with the Military for 8 years.
22. She confirms that she prepared the dental report. She states that the medical report was done by Dr Lana, who is the medical officer.
23. On examination of the Complainant she identified that he had a hematoma on his left eye, he could not open his mouth and the four upper and lower gums were tender. He had soft tissue injury. He was already on antibiotics which she advised him to continue.

THE DEFENDANTS CASE IN CHIEF

Ross Hariki

24. He says that in the morning in question, his unit along with the other SRU units received a report that there were opportunists hanging around the Swing Bar.
25. They started dispersing unnecessary people who were harassing women, stabbing people and attempting to get into the bar. They cleared the place and that’s when they heard swearing coming from the bar. Twice when he heard it, he assumed it was the normal bar activity. On the third occasion he realised that the swearing was directed at the police officers. He then heard the securities telling the person swearing to keep his mouth shut. When the securities realised that the policemen heard the swearing, they pushed the complainant out and told him to explain himself.
26. It was at this point that he grabbed him by the collar in one had whilst he held a gun in the other hand. The Complainant was resisting and telling him that “Lucky na yupla wearim uniform”. As a result of the struggle, the Complainant fell to the ground. He almost fell since he was holding onto the complainant. He did not kick him. Other policemen helped him to get the Complainant into the car because he was resisting. They then took him to the police station.
27. He then prepared his Court papers. The Complainant was crying and begging him. The Complainant tried to give him money but he refused. Because of the Covid 19 restriction, they were allowed to exercise their discretion to lay charges. He felt sorry for the Complainant and so informed him to sign his Court papers.
28. He identified the Court papers that were marked as Defence Exhibit 1. He then released him. The charges he prepared were Insulting Language and Obstructing police.
29. After the Complainant was released he went and told his comrades. They wanted to damage the police station. The superiors heard the rumour and decided that it was a minor issue. Four SRU units including their superiors then convoyed to the barracks with K3000 cash, 2 pigs and garden food.
30. The soldiers refused to accept it and wanted the policemen dealt with.

Constable Paskalis Hokai

31. He says they got a call to remove opportunist. When they got to the area they started clearing the place. He then heard swearing coming from the bar. The person was swearing police officers. The securities then pushed him out of the bar.
32. The complainant tried to fight with the defendant. The Complainant said to the defendant “Mi soldia”. The defendant then held him by the collar and they struggled. They both fell.
33. When the street boys and civilians saw this, they came and attacked the complainant. The attacked him because they saw the policeman fall.
34. They then took him to the police vehicle and to the station. He is a solider and they train so he was very strong. They used force to put him in the police vehicle.

Senior Constable Albert Bula

35. They received a call that a policeman was assaulted so they went to the Swing Bar. They blocked the roads and went down to search for the suspects who assaulted the police officer. He did not go down because he was the driver.
36. He then observed a man being assaulted by civilians. When the man fell, the civilians ran off. He then went to see who was assaulted. He observed that the man was not moving. He then asked the policemen who he was and the men said that he was a solider. He directed them to put the man in the car but the man struggled with them. The policemen then pushed him.

FINDINGS OF FACT

37. Before proceeding onto my findings, I state here that there is no principle in law that requires me as a trier of fact to believe or disbelieve the whole of a witnesses’ evidence. Rather, I may believe none, part or all of the witness evidence and may attach different weight to different parts of the witness evidence, see James Pari and Tine Bomai Kaupa (supra).
38. I have written the evidence as each witness gave their account. I have considered all the evidence as adduced by both the prosecution and the defence. Where I have not mentioned matters in this decision it does not mean that I have not considered them or not given them the appropriate weight.
39. The defendant is 27 years old and is from Kiorota, Sohe, Northern Province. He is a policeman and holds the rank of Constable. He is attached with Sector Response Unit (SRU) 102.
40. The Complainant is 31 years old and is from Mukava, Cape Vogol, Miline Bay Province. He is a solider and holds the rank of Corporal. He is attached with PNGDF Headquarters but presently attending the Joint Forces Academy.
41. The Joint Forces Academy is based at the Igam Army Barracks in Lae. It is a college set up for the training of police officers, military officers and correctional services officers. It is being developed to become an accredited University.
42. In order to establish what actually transpired that relevant morning, it is essential to set the scene and the mood.
43. Whilst the defendant and Constable Hokai say that they received a call to clear the front of the Swing Bar of opportunist, this is inconsistent with what Senior Constable Bula says. SC Bula says that they were there because a police officer and a member of the SRU was assaulted. It became clearer in SC Bula’s cross examination that the assault of the police officer was the previous day. That the policemen were there to search for the suspects who assaulted their friend and colleague.
44. This is evident by the fact that all four SRU units converge in front of the Swing Bar and blocked off the area in tactical form.
45. I find that the policemen were not there because they received a call for police assistance but instead they were out looking for the suspects who assaulted their comrade. They were angry and agitated.
46. I also find that the complainant did utter or express some words to the police officers as he sat at the entrance of the bar. As to what actually were those words is irrelevant, because the nature of which was sufficient to further agitate the policemen.
47. Whilst the complainant says that he said the words to himself, I find that it was loud enough to draw the attention of the defendant. This caused the defendant to punch him and pull him out of the bar.
48. Some words were exchanged, the complainant obviously wanting to know why he should be treated in such a manner. The complainant being a solider and especially one attached to the Joint Forces Academy was not easily shaken by the defendant. He defended himself when punches were thrown at him.
49. This infuriated the policemen who all converged on him.
50. These I find were the events of that fateful morning.

THE EVIDENCE WEIGHED

51. The complainant’s case was easy to follow. He his evidence was straight forward and was given confidently.
52. The defendant’s case was aggravated because his own lawyer did not form a theory which could be presented in a logical manner. This is a case that involved a dispute as to the factual events of that morning. The factual theory must be consistent with the defendant’s version against the weight of other relevant evidence. Failure to have a theory leads to the evidence begin inadmissible, appearing inconsistent and unreliable against the weight of other evidence, confusing, or merely unimportant.
53. The better part of the cross examination of the complainant centred around how much alcohol he had consumed. Following which it was put to him that it was other policemen that assaulted the complainant and not the defendant.
54. When the defendant gave evidence, he denied that he assaulted the complainant. Was evasive as to whether other policemen assaulted the complainant. Instead of answering the question put to him directly whether other policemen assaulted the complainant, his answer was that, if the complainant said that then he should produce evidence. Further the defendant stated that the complainant had no injuries and the medical report was fabricated.
55. Other than the defence case becoming confusing, Mr Mambei did not challenge the medical report or the injuries of the complainant. A clear breach in the rule in Browne v Dunn(supra).
56. To add salt to the wound, Constable Hokai and SC Bula then present a civilian theory. They both agreed that the complainant was injured although they attempted to minimise the extent of his injuries. They say those injuries were caused by civilians and reasonable force being used.
57. The defendant did not mention any civilians attacking the complainant in his evidence nor was the complainant cross examined about this. Defence exhibit 1 comprising the court file of the complainant contains a statement of facts, which makes no mention of civilians attacking the complainant.
58. I find that the evidence is a recent invention in an attempt to avoid being implicated in the assault.
59. The evidence is also inconsistent with common sense and logic. All defence witnesses say they cleared the place. There were four SRU units present that morning and all were heavily armed. The SRU is a specialist police unit which is well known in Lae. The officers were there because one of their members was assaulted the previous day. The way then approached the scene and in the numbers, is indicative that they were angry and after blood. It defies logic that civilians were still hanging around and were so brave to approach someone who was already in police custody and start assaulting that person.
60. The reasons for the civilians attacking the complainant according to Constable Hokai was because they saw that the defendant fell and were not happy that a policeman fell down. He says that the civilians were their street boys from Taraka. This may be plausible however the defendant says that he did not fall. When this inconsistent was put to Constable Hokai, he said that his version was the correct one.
61. A final theory by Mr Mambei was that, if in the event the Court was to find that the defendant and other police officers assaulted the complainant, then, the force used was reasonable to effect an arrest.
62. I don’t know what Mr Mambei’s definition of reasonable force is, when the injuries were such that the complainant could not open his mouth, had soft tissue injuries all over his body and a haematoma on his left eye.
63. In all, I have carefully assessed the motivation, reasons or pressures that may have been brought upon the defendant, Constable Hokai and SC Bula, to have varying versions. Constable Hariki says that there was a threat to destroy the police station and so he and his members and superiors brought K3000.00 and two pigs to appease the soldiers. However, the soldiers wanted the policemen charged. Whilst Constable Hariki says that he does not know why the complainant would identify him specifically, it is evident that his identity was not a problem because he was the person who had first contact and was responsible for the complainant’s arrest. The other policemen have been hidden behind “the blue line”. It is obvious that someone had to be the sacrificial lamb to appease the angry soldiers. That someone was Constable Ross Hariki. Any convictions against the police officers would likely mean loss of employment or a civil case for damages.

CONCLUSION

64. I find from the evidence that, the defendant was the first person that pulled the complainant out of the club, punched him and that other policemen joined in and they all punched and kicked the complainant.
65. I return a verdict of guilty on the charge of Unlawful Assault under section 6 (3) of the Summary Offences Act.
66. To assist me in sentencing of the offender, I order a Pre-Sentence Report.
67. I exercise my discretion and grant bail after conviction pursuant to section 10 of the Bail Act.
68. The matter is returnable on the 9 June 2021 at 9.30 am for submissions on sentence.

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Solwai Lawyers

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^[1] State v Taroah [2004] PGNC 104;N2675; The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 ; The State v Peter Malihombu (29/04/03) N2365 ; The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48