State v Kopio [2011] PGNC 45; N4263 (20 April 2011)

N4263

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 896 OF 2009

THE STATE

V

NENAI KOPIO

AND

CR NO 897 OF 2009

THE STATE

V

JAMES KAIMO

Mount Hagen: Makail, J
2011: 13th, & 14th, 15th 18th 19th & 20th April

CRIMINAL LAW - Verdict - Grievous bodily harm - Multiple accused - Indicted as actual offenders and not as principal offenders - Failure of - Effect of - Accused not culpable - Criminal Code, Ch 262 - Sections 7 & 319.

EVIDENCE - Identity of perpetrators - Proof of - Evidence of - General and vague - Unreliable and doubtful - Identity of accused being attackers not established - Accused acquitted - Criminal Code Ch. 262 - Sections 7 & 319.

Cases cited:

The State -v- Allan Allam (2009) N3788

Counsel:

Mr J Waine, for the State
Messrs F. Kua & T Dalid, for Accused

VERDICT

20th April, 2011

1. MAKAIL, J: The accused are indicated with one count of unlawful grievous bodily harm caused to the victim, one Ruben Isaac at Avi block near Mt Hagen on 01st February 2009 under section 319 of the Criminal Code, Ch 262.

2. At the outset, it must be stated and emphasised the State has not alleged in its brief allegations of fact that the accused were on trial for this offence because of their involvement as principal offenders under section 7 of the Criminal Code, Ch 262. This point was conceded by the State prosecutor. He submitted this was because the State alleged the accused were identified as the perpetrators and that was the reason, the State had solely alleged they attacked the victim with bush knives and cut the victim on his left hand fingers, fracturing the pointer and severing the tall finger (the 2nd and 3rd fingers). The attack and wounding of the victim arose from land related dispute between the accused and the victim. The land in dispute was commonly referred to as block 530.

3. However, in my view the evidence of the State witnesses does not sufficiently established the identity of the accused and that they were at the scene of the crime. The first witness, namely the victim claimed he saw the accused at the scene and there were other men also at the scene. The other man he named as Mathew Kopio and Jeffery Mathew. These men including the accused were armed with bush knives and attacked him. They swung their bush knives at him and in an attempt to defend himself, sustained injuries to his left hand fingers when he lifted his hands to protect his face and body.

4. His left pointer finger was fractured due to the blow from one of the bush knives and the left tall man finger was severed by a blow from one of the bush knives. However, he did not say if one or both accused swung a bush knife that inflicted these wounds. He only made a general statement that it was the accused and the others who attacked him. He does not pin point or clearly indentify the accused as being the persons who swung and cut his fingers with the bush knives.

5. His evidence depicts a mob attack on him and the accused can only be culpable if the State alleged that the accused were involved or participated as principal offenders under section 7 of the Criminal Code, Ch 262. If that is the evidence of the State witnesses, this would be contrary to the allegations that the accused were the sole perpetrators of the offence.

6. The second witness a village Court magistrate Abel Ani also does not improve the state's evident. He claimed he saw the accused and other men at the scene of the crime. For the other men, he named them as Mathew Kopio, Jeffery Mathew and Larson Sak. They were armed with bush knives. Before they attacked the victim, Mathew Kopio told him that he would throw him into the burning furnace and without further warning, punched him on his left eye and then on his right eye. He fell down on the ground and was in a state of dizziness. When he regained his consciousness, he saw Jeffrey Mathew lift his bush knife and swung it at the victim and he thought that it was going to cut off the victim's head. Instead, the blow struck the victim's fingers because the victim lifted his hands to protect his face or head. Then he said the accused joined in the attack.

7. Again, the evidence of this witness does not establish that either or both accused swung the bush knives and struck the victim on his left hand fingers. This witness went and to claim that the accused swung their bush knives and struck the victim on his right elbow and left knee but the State's allegations against the accused were specific. They were that, the accused struck the victim on his left hand fingers with bush knives. I accept as a matter of fact the victim sustained injuries to his left hand fingers from bush knife attack, but in my view, the evidence establishing the accused as his attackers is general and vague. If anything, Abel Ani's evidence established that the person who struck the victim with the bush knife on his left hand fingers was Jeffery Mathew but he is not the one on trial in this case. It is the two accused.

8. In my view, the State witnesses' evidence does not establish the accused inflicted the wounds on the victim's left hand fingers. I repeat and emphasis the evidence is general and vague. The evidence so far points to Jeffery Mathew as the person who inflicted the wounds on the victim. The accused cannot be held criminally responsible for Jeffery Mathew's actions because they were not charged principal offenders under section 7 of the Criminal Code, Ch 262.

9. I drew the distinction between the actual perpetrator and perpetrator by association under the principle of principal offender under section 7 of the Criminal Code, Ch 262 in The State -v- Allan Allam (2009) N3788, a case of wilful damage to property where the accused was charged as an actual perpetrator. There, I said:

"I consider the third point critical in this case, because it is unclear from the allegations of fact presented by the State, which the Court adopted for purposes of arraignment of the accused where the State said; "The State further alleged that the accused led the group and they wilfully and unlawfully destroyed the properties." Has the State indicted the accused as the actual perpetrator of the offence although he led a group of people to destroy and damage the properties of Mr Paul Mai or has it indicted him as a principal offender by virtue of section 7 of the Criminal Code? (Underlining is mine).

In my view, this question is critical because the State cannot hold the accused criminally liable for the actions of his clansmen and women or the people who went with him to the premises of Mr Paul Mai that day if the State has not alleged that the accused is a principal offender by virtue of section 7 of the Criminal Code. This is because in law, the State is required to inform the Court and of course the accused that it would rely upon the principle of principal offender under section 7 of the Criminal Code. It has not done so in this case. In other words, the State has indicted the accused as the actual perpetrator of the offence rather than an aider and abettor under section 7 of the Criminal Code.

Hence whilst there is evidence establishing that he led his clansmen and women to the premises of Mr Paul Mai where his clansmen and women destroyed or damaged various properties on the premises, the Court cannot hold him liable for the actions of his clansmen and women that day simply because the State had not alleged that he aided and abated the commission of the offence by virtue of section 7 of the Criminal Code. This is a fatal error or omission on the part of the State of which neither counsel had drawn my attention to. It is fatal to the State's case because as the State had not relied upon section 7 of the Criminal Code, I cannot hold the accused criminally liable for the actions of his clansmen and women on that day."

10. It is very crucial for the State to make that distinction in this case because it is the defence case that the accused were not present at the scene of the crime that time. They raised alibi and called alibi witnesses to support their claim. First, the accused Nenai Kopio said he was with Jack Amu in Mt. Hagen when the attack on the victim occurred at block 530 at Avi. He went to visit Jack Amu because they had a business arrangement to buy bananas from the local community in Avi to supply the giant Porgera Gold mine mess. He left his house in the morning around 6 o'clock and was with Jack Amu until about 11 o'clock when he returned to Avi. Jack Amu corroborated his evidence on these aspects.

11. When he arrived at Avi market, it was around 12 o'clock and he met pastor Peter Kumuno who was his neighbour and walked with him to the house. Pastor Peter also said he finished church service and was on his way out of the church area when he met the accused and it was around 12 o'clock because that was the usual time for Sunday service at his church to end. When both of them arrived at block 530, they were told by people that a fight had occurred earlier on.

12. As for the accused James Koimo, he said he was digging in his garden near a river called Wara Pen when the attack on the victim occurred. He was with his wife and child. Also nearby was Peter Lai. Peter Lai was manning his pigs and collecting firewood from the river bank. Peter Lai corroborated his alibi.

13. As the defence had raised alibi, this puts all matters in issue between the parties, especially the facts relating to the proof of the elements of the offence, in this case unlawful grievous bodily harm. The contentions issue was the identity of the perpetrators.

14. I have no reason to doubt the evidence of the accused and their alibi witnesses. The State relied on their records of interview with the police (exhibits "P1" and P2") and contented that the accused made admissions that, first they were present at the scene of the fight and secondly, also attacked the victim. It was suggested, both accused seemed to have blamed each other for being present and involved in the attack of the victim.

15. However, I am not satisfied that they made admissions in their records of interview. They never said they were present and involved in the attack of the victim. See answers of accused Nenai Kopio to Q24 and Q25 of the record of interview (exhibit "P1" ) and answers of the accused James Kopio to Q17- Q20 of the record of interview (exhibit "P2").

16. In my view they had sufficiently explained why they named the persons who were involved in the attack but they unequivocally denied being involved in the attack of the victim. As they have denied being involved in the attack, the onus is on the State to establish that they attacked the victim.

17. I was impressed with each of the alibi witnesses. They were confident when they gave evidence and their respective evidence was consistent with the evidence of the accused. They also withstood intense cross-examination by the State prosecutor and answered questions that established a flow in the chain of events that occurred that day which that took the accused away from the scene of the crime when the offence as alleged to have occurred. I find all these alibi witnesses credible witnesses and accept their respective evidence.

18. That means, that accused Nenai Kopio was not at the scene of the crime at the time the victim was attacked. He was in Mt. Hagen on business. The accused James Kaimo was also not at the scene because he was in his garden with his wife and child at that time the victim was attacked.

19. That explains why the victim was unable to correctly identify or assert in his claim that he saw one of the accused or both accused struck him on his hand with a bush knife. This became apparently clear when he named one of his attackers as being the accused James Kaimo and then changed the name to Jeffery Kopio or Jeffery Kaimo. The witness Abel Ani was also in the same boat. He was unable to correctly identify one or both of the accused who struck the victim with the bush knife. He only identified Jeffery Mathew as the person who swung the bush knife and cut the victim on his left hand fingers when the victim lifted his hands to protect his head or face.

20. On the evidence before the Court, I am not satisfied the evidence established the accused attacked the victim. The evidence of the accused being the attackers of the victim is general and vague. It is unreliable and doubtful. I find the element of the accused being the attackers of the victim has not been established. The State has therefore failed to establish beyond reasonable doubt the charge against the accused.

21. I order that they be acquitted forthwith.

____________________________________
Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for Accused