State v Inolu [2008] PGNC 145; N3493 (25 August 2008)

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CRIMINAL LAW - verdict - grievous bodily harm - Criminal Code - section 319 - defence of self defence raised - elements of self defence - evidence failing to show defence - defence not established beyond reasonable doubt - guilty verdict returned - Criminal Code - section 269.

EVIDENCE - prior inconsistent statement - whether evidence of witness should be believed - witness entitled to give further evidence not stated in prior statement during cross examination - purpose of cross examination - to elicit more evidence from the opponent’s witness when no such evidence was led during evidence in chief - no inconsistency in the evidence of witness.

Cases Cited:
The State -v- Murray William and 2 Ors (2004) N2556
The State -v- So’on Taroh (2004) N2675

Counsel:
Mr J. Kesan, for the State
Messrs M.Mumure & V Augusave, for the Accused

1. MAKAIL AJ: On 8 May 2008, the State presented an Indictment against you on one count of unlawfully causing grievous bodily harm to one Pone John at Mendi town of the Southern Highlands Province on 14 May 2006 contrary to section 319 of the Criminal Code. On arraignment, you admitted to committing the crime but you told the Court that you acted in self defence.

2. Upon this representation, I entered a plea of not guilty. I then adjourned the matter to 09 May 2008 at 1:30 pm for trial. As the trial could not proceed on 09 May 2008 at 1:30 pm, I further adjourned the matter to 12 May 2007 at 1:30 pm. The trial commenced on 12 May 2008 at 1:30 pm and continued until 14 May 2008. On 14 May 2008, I heard submissions on verdict and reserved my decision to a date when the Court next returns to Mendi. This is my decision on verdict.

3. The following facts are not in dispute; you and Pone John (herein the "victim") are from Teta village. Teta village is about 30 minutes walking distance from Mendi town. On Sunday 14 May 2006, at about 8:30 am there was a fight in Teta village.

4. The fight was between you and the victim’s father named, Yawe John. The fight arose because of a land dispute. You had gone and made a garden on a piece of land which Yawe John claimed was his land.

5. The fight took place in and outside your house. During the fight, you and Yawe John sustained injuries. Both of you went to Mendi town to seek medical treatment at the hospital and also to report the fight to the police at Mendi police station.

6. At the gate of Muruk Lodge in Mendi town, there was a second fight. In this fight, the victim received injuries. This was the fight that gave rise to a complaint laid before the police and the subject of this trial.

7. In the second fight, you said that the victim attacked you and in the process of defending yourself, you wounded the victim.

8. The issue is, did you act in self defence when you caused grievous bodily harm to the victim?

9. The crime of which you have been indicted is provided for under section 319 of the Criminal Code and it states that a person who unlawfully causes grievous bodily harm to another person is guilty of a crime. It carries a maximum penalty of imprisonment for a term not exceeding 7 years.

10. You said that you acted in self defence. It is a defence available to you under section 269 of the Criminal Code. It is in the following terms:

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm."

11. I would respectfully adopt the simplified version of the defence of self defence in the Judgment of The State -v- Murray William and 2 Ors. (2004) N2556 where His Honour Kandakasi J summarized the elements of the defence as follows:

"It is clear to me that, the defence under this section covers two situations. The first is under the first subsection where an assault is directed at the person acting in alleged self-defence. The second is under the second subsection where death or grievous bodily harm is directed at the person allegedly acting in self-defence. In the first case, the following are the necessary elements:

3. uses such force as is reasonably necessary to make an effectual defence against the assault; and

As for the defence under the second subsection, the following are the elements that make up the defence of self-defence:

2. the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm..."

12. Before I apply the law to the facts of this case, I turn to the disputed facts and analyse them.

13. The State alleged that you did not act in self defence when you unlawfully caused grievous bodily harm to the victim. It alleged that after the fight in the village, the victim and his father along with his two sisters, Kol Weri and Mary John went to the police station in Mendi town to report the fight to the police.

14. Whilst they were at the police station, they saw you coming to the police station. You were armed with a bush knife. Since you were armed with a bush knife, they thought that you were going to attack them and feared for their lives. A duty policeman at the police station who was taking the report of the fight in the village told them to escape through the back exit of the police station towards the direction of the Mendi Court House premises which they did. As it was Sunday, the gate to the Mendi Court House premises was locked and so they could not gain access to the other side of the Court House. As a result, they made their way up towards the Mendi Post Office and then to Papindo Shop entrance.

15. When they were at Papindo shop, you spotted them and followed them. When you arrived, Yawe John told you not to fight because the both of you had already fought in the village and that you all should return to the village and resolve the dispute.

16. They then walked up to the gate of Muruk Lodge and you followed them there. At the gate, you swung the bush knife at the victim. The blow was aimed at his head or facial area. He lifted both hands to protect or shield himself and it struck both of his hands and part of the side of his neck. He grabbed you and pushed you backwards. You fell into a drain next to the gate of Muruk Lodge. Then bystanders threw stones at you. As a result, you fell unconsciousness for 15-20 seconds before you regained consciousness.

17. On the other hand, you and your witnesses claimed on the morning of Sunday 14 May 2006 at about 8:30, you were with your family at your house in Teta village and getting ready to go to church. You and your three children were waiting for your wife to finish cooking flour for breakfast. At that time, there were three other women staying with your family. They were Rose, Lina and Betty.

18. All of a sudden, Yawe John and his two sons, namely the victim and Leva John and a group of men came into your house. They were armed with bush knives and coffee sticks. Yawe John asked you why you had made garden on his land. Without further words, he swung the bush knife at you and you avoided it. A big fight ensured thereafter where you were forced to retreat into the living room of your house. Rose, Lina, Betty including you and your wife fought with these armed men.

19. In the living room, you received the wound to your forehead when Yawe John swung the bush knife and struck you on the head. You fell down and Yawe John sat on top of you and held your throat with the intention of suffocating you. In order to prevent him from doing that, you grabbed his testicles and squeezed them. He felt pain and screamed for help and the victim came to assist him. The victim grabbed and removed your hands from his testicles. Yawe John got up and you took the opportunity to dash outside the house. Yawe John followed you outside and both of you continued fighting.

20. This was when he swung his bush knife and cut you on your left hand near your wrist. You also swung your bush knife and cut him on his right hand. While this was happening, your wife and the three other women fought with the group of armed men and were able to disarm them.

21. The people standing around at that time stopped the fight. You said you went ahead of the victim and his family to report the fight at the Mendi police station. But at the police station, the duty policeman upon seeing you bleeding very badly told you to first go to the hospital to get medical treatment. He told you to return later to make your report.

22. You left for the hospital and it took a while for you to eventually get treated. When you returned to the police station, it was around 11:30 am. You said as you approached the police station, you saw the victim and his family inside the police station. When you went into the police station, they were no where to be seen.

23. You told the duty policeman that you will not lay any complaint and leave the bush knife with him until you bring with you Yawe John, the person who assaulted you. And so, you walked out of the police station and headed back to your village. When you arrived at the gate of Muruk Lodge, you met the victim, Yawe John and a group of men. You said they were armed with bush knives and coffee sticks.

24. The victim was the first to swing his bush knife at you. In order to defend yourself from the blow, you also swung your bush knife at him. You said that it was a simultaneous action. You cut him on his hands and he cut you on your left hand finger. The victim grabbed you and swung you into the drain near the gate of Muruk Lodge. When you fell inside it, the men threw stones at you and you fainted for about 15 to 20 seconds. When you recovered, you dashed for the police station and reported the incident.

25. From all these two versions of the incident, the question is; which of these versions the Court should accept? This is dependant on which side the Court finds more credible.

26. As His Honour Kandakasi J said in the case of The State -v- So’on Taroh (2004) N2675 on page 5 of the Judgment:

"Finding of credibility is in turn dependent on matters of logic and commonsense as well as the demeanor of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 and The State v Peter Malihombu (29/04/03) N2365. Accordingly, I carefully observed the demeanor of each of the witnesses called. I must say I could clearly tell that each of the witness were protective and supportive of the version of the party that called them. I sensed therefore that, their respective testimonies were not entirely the truth. There were some truths and some tailored evidence on both sides".

27. I adopt these principles and will apply them here. I will base the findings of this Court on the credibility of each witnesses through their demeanour and also on logic and commonsense as well as inconsistencies in their evidence.

28. Proceeding on this premise, first up, let me state here that I do not believe that all the witnesses who came to Court and gave evidence for or against you told the entire truth. Some of their evidence were tailored to suit each party’s case. I will revert to this matter later when I revisit each of the evidence of the witnesses.

29. For now, in the first fight in the village, I find that the victim was at the village market. He did not join Yawe John until he heard there was a fight between you and Yawe John at your house. He ran with the others to your house. When the victim entered your house, you and Yawe John were in the living room where you were lying on the floor and Yawe John was sitting on you and strangling your throat.

30. In the house, he saw you lying down on the floor with Yawe John sitting on top of you. You were squeezing Yawe John’s testicles and he was screaming. That was the time the victim came to the aid of Yawe John and fought you. He did that by grabbing and removing your hands from Yawe John’s testicles. You released Yawe John’s testicles and Yawe John also released his hands from your throat. You took that opportunity and you ran out of the house.

31. I am entitled to make this finding notwithstanding Mr Mumure’s submission that the victim has given a prior inconsistent statement where he said that he went to your house and in his sworn oral evidence, he denied going to your house and assisting Yawe John during the fight. I make this finding because the victim in cross examination by Mr Mumure stated that he had gone to your house to assist Yawe John during the fight with you.

32. Thus, this is where I accept Mr Kesan’s submission that the victim is entitled to give further evidence of the fight during cross examination even though they were not stated in his statement because this is the very purpose of cross examination. That is, to elicit more evidence from the opponent’s witness when no such evidence was led during evidence in chief. I find that there is no inconsistency in the evidence of the victim and I accept his version.

33. As the fight was initially between you and Yawe John, Yawe John was the first person who entered your house. I accept that he was armed with a bush knife. He struck you with the bush knife on your forehead. This was the bush knife that you subsequently took with you to the police station in Mendi when you went to report the fight. I do not accept your version of the events where you claimed that a group of about ten armed men with bush knives and coffee sticks came into your house in a mob and fought with you and the four females who were with you.

34. For to accept these evidence would defy all logic and common sense. This is where, I find the evidence of your wife, Mrs Rebecca Inolu self serving. As she is your wife, the evidence she gave was tailored to suit you. It was to protect you. Whilst I accept that she was inside the house with you during the fight and that Yawe John came into the house and asked for you, I do not believe her evidence that she assisted you by fighting ten men armed with bush knives and coffee sticks and yet received no serious injuries. I also find it incredible and hard to believe that the four women, Rose, Lina, Betty and your wife including you disarmed ten men armed with bush knives and coffee sticks.

35. If that was true, where are the bush knives and coffee sticks? I would have thought you would have produced them to the Court as evidence to verify your wife’s claim that the bush knives and coffee sticks were removed from these armed men by you and these four women.

36. Thus, I reject her evidence that she and the other three women fought ten armed men. As I have found, the fight was between you and Yawe John. Pone John only came into the house to assist his father, Yawe John.

37. Further, I find that no one in his right frame of mind and logically speaking would have just simply stood there and watched his father fight with another man or get beaten up by another person. To my mind, it would not make sense. Common sense would dictate that the victim would have intervened and assisted his father, Yawe John to remove your hands from Yawe John’s testicles.

38. I find that there was no one else involved in the fight. Not even the ten armed men. As the fight was between you and Yawe John I do not accept your wife’s evidence that ten armed men destroyed and damaged your house, personal items including your garden and coffee trees beside the house.

39. I also find that the fight between you and Yawe John ended up outside the house when you escaped from inside the house. This was when he swung the bush knife at you and you also swung the bush knife at him. You were injured when his bush knife struck you on your left hand. He also received injury when you struck him on his left hand with your bush knife. The both of you received bush knife wounds.

40. The other people who were standing around there at that time stopped the fight and you left for the police station. The victim and Yawe John and his two sisters, Kol Weri and Mary John also went to report the same fight at the police station.

41. I further find that none of your relatives let alone Ponpis Inolu followed you. You were by yourself and when you caught up with the victim, Yawe John and the two women, they were at the gate of Muruk Lodge.

42. This is also where I reject the evidence of your other witness, Ponpis Inolu. He is your brother. He claimed that he was in Mendi town on the morning of Sunday 14 May 2006 when you and the victim fought at the gate of Muruk Lodge. He said that he followed you to Mendi town after the first fight in the village. He went with you to the police station and after the policeman advised you to go and get medical treatment first he followed you to the hospital.

43. The both of you returned to the police station and then you walked up to the victim, Yawe John and others at Muruk Lodge. He said he followed you some distance away and saw the second fight at the gate of Muruk Lodge. He said that he saw the victim was the first to swing a bush knife at you. It cut your finger and you swung your bush knife in return and it cut the victim’s back part of the hands.

44. Again, I find the evidence of this witness, Ponpis Inolu self serving. Apart from being your brother where there is present an element of bias and protectiveness over you, I find that he was not present either in Mendi town or some distance away from Muruk Lodge when the second fight occurred.

45. I say this because first, in your evidence, you did not say your brother, Ponpis Inolu accompanied you to the police station and subsequently to the hospital. You also did not say that he followed you to Muruk Lodge where the victim, Yawe John, Kol Weri and Mary John were standing. Surprisingly, Ponpis turned up in Court and gave evidence that he was with you all the time when you were in Mendi town.

46. There is also another reason for saying this and that is, the evidence of Ponpis contradicts your evidence where he said that he was standing some distance away and saw the fight between you and the victim after he followed you up from the police station. In your evidence, you never said that Ponpis followed you up to the gate of Muruk Lodge.

47. Further, when asked in cross examination how far he was standing when you and the victim fought, he said that he was standing from a distance like from the witness box to the first line of chairs in the court room. In my estimation, that distance is about three meters. This is a very close distance and you would have seen him. You would have mentioned his presence in your evidence but you did not.

48. I also find that he was evasive in his answers during cross examination when asked very simple questions to describe the fight between you and the victim. For example:

49. From Ponpis’ response above, if he said that he clearly saw the fight, then why did he say that he did not know which hand you were holding the bush knife. Surely he could have described in detail how the fight took place rather than just saying "I don’t know" and "did not see". In my view, this goes to confirm my suspicion that he was not there at the time of the second fight at the gate of Muruk Lodge. That is why his demeanour as a witness did not impress me.

50. The other reason is one of logic and common sense. It is unusual and illogical for a person, especially a brother to stand back and watch his brother get beaten up by another person. The least Ponpis could have done was to intervene and stop the fight. He said he just stood there and watched the victim and you fight. He said he did not want to fight because he did not have pigs to give as compensation if he got involved in the fight. I find this story incredible and illogical.

51. For these reasons, I am not at all satisfied with the evidence of Ponpis Inolu. I find that Ponpis fabricated his evidence simply to corroborate your evidence. He is not a witness of truth and I reject his evidence in its entirety.

52. On the other hand, I am prepared to accept most aspects of the evidence of the State witness, Kol Weri. She is one of the sisters of the victim and the daughter of Yawe John. She corroborated the evidence of victim and Yawe John.

53. First, she said that she heard there was a fight in the village. After the fight she accompanied the victim and his father Yawe John and other sister to the hospital for medical treatment. On the way, they went to the police station in Mendi to report the fight in the village.

54. Secondly, at the police station Yawe John was about to give his statement to the policeman when they saw you walk towards the police station. You had a bush knife. They feared for their lives and left the police station through the back exit. They walked up to Papindo shop and on the way they saw you following them with a bush knife.

55. Thirdly, she said that they walked up to Muruk Lodge and you caught up with them. Yawe John told you that as you both fought in the village, you should both return to the village and resolve the dispute there.

56. Fourthly, she said that she thought you were going to cut Yawe John with the bush knife and she and the victim went closer to Yawe John. Instead, you swung your bush knife at the victim. To protect himself from the blow, he raised his hands and it struck him on the back part of his hands.

57. Then the victim pushed you into the drain near the gate of Muruk Lodge. She said that at that time, they were unarmed. There were some boys nearby and they came and chased you down to the police station.

58. I reject Mr Mumure’s submission that as this witness is a sister of the victim, her evidence is self serving. Kol Weri’s evidence has not been shaken during cross examination. It is consistent with the evidence of the victim and also Yawe John.

59. Based on the closer examination of the witnesses’ evidence, I do not find that you and Yawe John first met at Papindo Shop and Yawe John told you to return to the village to resolve the dispute. Instead, I find that you caught up with him and others at the gate of Muruk Lodge and that was when you and Yawe John exchanged words to the effect that the dispute should be resolved in the village.

60. This is where I find that you and the victim and Yawe John’s evidence that no one said anything to each other at the gate of Muruk Lodge incredible and hard to believe. How could you, the victim and Yawe John without talking to each other out of the blue so to speak swung bush knives at each other? I find that you were armed with a bush knife which you carried with you up from the police station. The victim was unarmed.

61. You swung the bush knife at the victim. The blow was aimed at his head or facial area. The victim then in an attempt to protect or shield himself from the swinging bush knife raised both hands and that was when the bush knife cut the back part of both hands.

62. He wrestled you and pushed you backwards and you fell into the drain beside the gate of Muruk Lodge. Then, by standers threw stones at you as you were lying unconscious in the drain. The victim also fell unconscious. He regained consciousness at Mendi General Hospital where he was quickly rushed earlier on to get medical treatment.

63. The findings I make is consistent with and confirmed by the kind of injuries sustained by the Medical Report of Mendi General Hospital dated 02 November 2006 (Exhibit "P1"). The victim was examined on 14 May 2006 and the following injuries were identified:

Neck	right side (posterior triangle) deep 3-4 cm x 10-12 cm long; and

Right forearm	later aspect
	Laceration deep,
	15-20 x 5-5 cm,
	severing tendons, nerves and vessels,
	Bleeding,
	Tender,
	Loss of normal function involving fractured bones.

Left forearm	later aspect superficial lacerations with dermal skin chopped off

X-Ray # M0733 shows transverse fracture ulna bone

64. It also stated that because of the nature and severity of the wounds sustained by the victim, he was taken to the operating theatre for examination and administered anaesthetics.

65. Based on the Medical Report and from the evidence of the victim of the kind of injuries sustained, I am of the opinion that they are very serious and life threatening injuries. There is no doubt in my mind that the blow from the bush knife was aimed at the head or facial area of the victim’s body. Fortunately though, it did not end up on his head or face because he lifted his hands to shield himself from the blow. As a result, the blow from the bush knife struck his hands and also the right side of his neck.

66. I also find that you sustained injuries as confirmed by the Medical Report of Mendi General Hospital dated 21 January 2008 (Exhibit "D1"). According to the Medical Report, you sustained the following injuries:

Face/Neck	wound required 3 stitches;
Left 5th finger	wound required 7 stitches; and
Left leg	wound 2 cm deep, sutured requiring 4 stitches.

67. But I do not believe that you received these injuries during the second fight at the gate of Muruk Lodge. On the contrary, I find that these injuries were sustained during the first fight with Yawe John in the village.

68. In the end, I have reached the conclusion that the second fight at the gate of Muruk Lodge was unprovoked. I find it was a new set of events from the first fight in the morning because first it occurred at a different location, namely at the gate of Muruk Lodge in Mendi and secondly, considerable time has lapsed since 8:30 am. The second fight took place between 11:30 am and 12:00 pm. This would be correct because according to your evidence, the fight was witnessed by Church goers that day. Usually Sunday services would finish around this time of the day and people would have been returning from church about that time.

69. Given the lapsed of time and the location of the fight, it cannot be said that the assault was provoked from the first fight in the morning. I find that the fight was provoked by you when you followed the victim, Yawe John and the two females to the gate of Muruk Lodge with the intention to assault the victim or Yawe John.

70. Whilst either of you denied exchanging words during the second fight, given the tense atmosphere at that time, I find that you both did exchange words. There is evidence that Yawe John told you not to fight and return to the village to resolve the dispute. That led to you swinging the bush knife at the victim.

71. The most logical thing for you to do was to simply report the fight to the police and hand over the bush knife and return home. It will be a matter for the police to apprehend Yawe John and bring him in for questioning and lay appropriate criminal charges if they think that he has committed any offence. It is not a matter for you to pursue the complaint on you own volition.

72. And so despite your claim that you were on your way to the village and stumbled or to use your own words in evidence in chief "crashed into them" at the gate of Muruk Lodge as they were walking up the road from Momei Oval, I find that you had followed them to the gate of Muruk Lodge. You instigated the second fight when you followed them there. You were armed with a bush knife. I find that Yawe John told you to return to the village so that you both could resolve the dispute there. But you swung the bush knife at the victim. It cut the victim on his hands as he attempted to avoid the blow by raising both of hands to protect his head or face.

73. I also find that there could not have been ten men fighting you at one time because logically speaking, if that was the case, you would not have been alive today unless you are super human. The account you have set out for me and would like me to believe and accept is unbelievable!
If I were to believe and accept that you had ten armed men with bush knives and coffee sticks converging on you at one time would to my mind best depict a movie scene where the hero would be up against a group of armed men and yet come out alive and with little or no injuries at all. I find your account very fascinating but unreal. I reject them.

74. As I have already mentioned above, none of the bush knives and coffee sticks used in the both fights were produced to the Court. For me these are serious omissions on your part which I will hold against the credibility of your witness, Rebecca Inolu.

75. And so, I find that there was no imminent danger posed against you at that time. First, there were no ten armed men with bush knives and coffee sticks attacking you at Muruk Lodge. Secondly, you confronted the victim and his father, Yawe John at Muruk Lodge. Thirdly, you were the first to swing your bush knife at the victim. The blow was aimed at his head or facial area. The victim was unarmed and in order to protect or shield his head or facial area from the blow, he lifted his hands. The bush knife cut the back part of his hands and right side of neck. He wrestled you and pushed you into the drain beside the main gate of Muruk Lodge.

76. I further find that the use of force from the blow of your bush knife was not necessary in the circumstances. It was intended to cause grievous bodily harm to the victim.

77. Accordingly I find that you did not act in self defence at all. It was in fact the opposite that occurred. It was the victim who acted in self defence. And so I must find that the defence of self defence has not been made out.

In the end, I am satisfied the State has proven its case beyond reasonable doubt in that, you unlawfully caused grievous bodily harm to the victim on the morning of 14 May 2006 and accordingly convict you of this crime under section 319 of the Criminal Code.

The next stage is for me to determine an appropriate sentence for you and that will be on a date to be fixed.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

National Court of Papua New Guinea

State v Inolu [2008] PGNC 145; N3493 (25 August 2008)