State v Aol [2013] PGNC 222; N5370 (24 September 2013)

N5370

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 661 OF 2009

THE STATE

V

DONIUS AOL

Kimbe: Geita AJ
2013: 9, 18, 24 September

CRIMINAL LAW – Trial - Grievous Bodily Harm – Unlawful acts intended to cause harm - Section 315 (d) Criminal Code –
CRIMINAL LAW – Trial – Grievous Bodily Harm - Alibi evidence - Onus on prosecution to remove or eliminate possibility of presence – Identification – Unsafe to convict - Intention & Motive not made out
CRIMINAL LAW -- Not Guilty verdict returned- Accused acquitted.

Cases Cited

John Beng v The State [1977] PNGLR 115,
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Jaminan v The State (No 2) [1983] PNGLR 318

Counsel:
Augustine Bray, for the State
Paul Moses, for the accused

DECISION ON VERDICT

24 September, 2013

1. GEITA AJ: The accused was arraigned on indictment charging him for the grievous bodily harm of Henry Tand. The charge is laid pursuant to Section 315 (d) of the Criminal Code, Chapter Number 262.

2. On arraignment the accused pleaded not guilty to a charge of grievous bodily harm to Henry Tand at Morekea junction, Kimbe on 25 January 2009 with intent to do grievous bodily harm to the victim.
Brief Facts

3. It is alleged by the State that in the early morning hours on the 25th January 2009 the victim was attacked by the accused at Morokea. The victim and his son together with other boys left Kimbe Lodge around 2 am after a dance and were returning home when they were met at Morokea and attacked. Whilst they were on their way home, the accused and his friends drove past them in another vehicle and waited for them at Morokea oil palm junction. As the victim came closer to them he stopped his vehicle next to their vehicle. At that moment the accused charged at the victim armed with a torch and bush knife in his hand, grabbed the victim who was driving his hired vehicle and began cutting him with the bush knife on his back. As the victim lay on the ground the accused kicked him several times knocking his head onto the bitumen road leaving him unconscious momentarily. The victim and his friends were armed with sticks and stones and bush knives. The victim was rushed to Mosa clinic and later rushed to Kimbe General Hospital for treatment.

4. The state alleges that as a result of the stabbing and assault on the victim the accused intended to do grievous bodily harm to the victim.

5. Section 315 Criminal Code Act creates the offence of grievous bodily harm and it is in the following terms:

315. ACTS INTENDED TO CAUSE GRIEVOUS BODILY HARM OR PREVENT APPREHENSION.

A person who, with intent–

(a) to maim, disfigure, or disable any person; or

(b) ...; or

(c) ...,

does any of the following things is guilty of a crime:–

(d) unlawfully wounding or doing a grievous bodily harm to a person;

(e) ...;

(f) ...;

Penalty: Subject to Section 19, imprisonment for life.

Elements of the Offence
6. The elements of the offence of grievous bodily harm are:

1. That the accused unlawfully wounded or caused grievous bodily harm to the victim;
   
2. That the accused had the intention to wound or cause the grievous bodily harm.
   

Undisputed Facts
7. There is no dispute that the victim received extensive wounds to his head and body on the night of 25 January 2009 at Morokea junction and that the killing was unlawful.

Disputed Facts
8. The facts in dispute are:

1. The accused was responsible for the wounds occasioned on the victim's body,
   
2. The accused had the intention to cause harm to the victim.
   

Evidence

9. Three witnesses gave oral testimonies including the following materials which were tended into court by consent viz.

• EXHIBIT "1" Interim Medical Report-Mosa Clinic 25/1/09.
• EXHIBIT "2" (a) & (b) - Record of Interview –Donius Aol (Pidgin & English)
• EXHIBIT "3 (a) & (b) - Confessional Statement -Accused (Pidgin & English)
  

State Witness 1- Henry Tand.

10. The witness said he left Kimbe lodge around 2 am after the dance had ended and headed home in his hire vehicle when he saw a white Toyota double cab vehicle overtake them. At the back of the vehicle they saw 5 to 6 men including the accused seated on the left hand side of the vehicle. He said he saw them at Kimbe Lodge car park as he drove out. He said the vehicle turned around at double bridge and was parked with its headlights on facing Kimbe direction. As the witness approached them he stopped alongside them when several men armed with stones and bush knives appeared. He said he saw the accused walk straight at him holding a torch in his left hand and bush knife in his right hand. The accused grabbed him by his throat while he was still in the vehicle and threw him on to the road. The accused then cut him with a bush knife on his back and hands. The witness said because the accused was known to him he called out to him to stop but he kept on kicking him resulting in him receiving a broken jaw and injuries to his head. He said he was unconscious for two minutes and when he regained consciousness he pleaded for mercy. The accused and his friends drove off after the attack and he was later rescued by his friends and taken to Mosa clinic. The witness described the accused as the tallest man in Kimbe and was well known in Kimbe town. He described him as wearing a cowboy hat, brown shirt and was last seen at the same dance at Kimbe Lodge.

11. On cross examination the victim said it took about few seconds from the time he saw him and the time he was pulled out of the vehicle, saying they were waiting for them. He admitted that several men attacked them armed with stones and bush knives but said the accused came towards him. When questioned who was with him during the attack he named his son David, Eugene and Justin and other boys but in the same breath said he was in front of the vehicle and had no time to observe who was in back trailer.

12. On re-examination he admitted to drinking about 8 to 9 bottles of beer but said the beer had run out at 11pm that night.

State witness No. 2 Derrick Tand.

13. The witness also attended the dance at Kimbe Lodge accompanied by his father, Justin, Kendi and other friends. After the dance ended at 2 am they all left in his father's hire white fifth element Toyota vehicle. Along the way home they were overtaken by a Toyota double cab vehicle owned by Works Department in Kimbe which drove on and parked at double bridge facing Kimbe. As the witness and his father came and stop next to them they were immediately surrounded by some men. He saw the accused run to his father's side, pulled him out of the car and began assaulting him with a bush knife on his back. Others threw stones and chased us with bush knives and so we ran away. He later returned to his father who was wounded and took him to Mosa clinic and later to Kimbe General Hospital. On examination in chief he said he was sitting at the back on the right hand side.

14. On cross examination he admitted drinking 6 bottles of beer at the dance but said he wasn't drunk. He also denied one of their boys swearing at occupants of the other vehicle at the car park. He maintained that there were lights from both vehicles enabling him to clearly recognise the accused that night. He said his father was unconscious and so he woke him up by shaking him and bandaged his wounds. When questioned why he failed to sign his statement given to Police (CID) he said because it was not given to him to sign. Again when suggested to him that he was lying to court and that his story was based on his father's version of events he said the statement given to police were his.

State Witness 3 Justin Peter

15. The witness also attended the dance with Derrick, Kaindi, and Simon at Kimbe Lodge. Around 2 am on Sunday morning they left for home along Hoskins highway and came upon a double cabin Hilux parked at Morokea junction with its double blinkers on facing the road. They slowed down to see if the occupants were in distress and needed help. He said the men on the road held torch on his left hand and bush knife on his right hand grabbed Henry and chased them. The witness said he saw the accused wearing a red shirt, brown trousers and a cowboy hat at the time of the attack. The witness said he was seated on the right hand side of the vehicle next to the cabin? When the victim was chopped they were chased away with stones and bush knives. They ran to their houses at Nahivile and later returned to rescue the victim.

16. On cross examination the witness said there were about 10 people at the back of the vehicle he was travelling in. He said both vehicle lights were on high beam and he was able to recognise the accused. The witness admitted to a fight at the car park and exchange of words from occupants of both vehicles. Asked if the boys they swore at the car park followed them he said the Hilux overtook them at Kimbe Lodge junction. He denied their boys assaulting the boys in the other vehicle. The witness remained adamant that the accused was at the double bridge and assaulted the victim and not at Kimbe Lodge that night.

Witness made no mention in his evidence of both vehicles headlight being on. All he saw was the blinkers or hazard light from the other vehicle.

Interim Medical Report

17. Dr. Maibon confirmed receiving and treating the victim in the early hours (3am) of 25 January 2009 at Mosa Clinic. He had flesh wounds to his scalp measuring 6cm x 1cm x 2cm (lengthxwidthxdepth). Flesh wounds also on his forearm and massive lower back wound measuring 50cm x6cm x 20cm.

The doctor's medical report was tendered into court by consent and marked Exhibit "1".

18. The accused's confessional statement and record of interview was of very little use to the state as the accused denied the allegation against him.

Defence witness 1- Accused Donius Aol

19. Having finished night security duties at the Oddesy Club around 12 midnight on 24 January 2009 he was dropped off at the Kimbe Lodge dance area by his colleagues, still wearing his blue security uniform. He met up with some friends and was told that the beer had run out so he went looking for beer with George, Augustine, Justin and Isidore. They returned to the dance hall with a carton of white can beer and drank with friends until the dance finished. Around 2 am the owner of the vehicle left the dance area leaving him behind with George K, Justin and his wife including the owner of Kimbe Lodge until 5.30am in the morning. He than walked up to the junction caught a bus and returned home to Gigo.

20. During examination in chief he admitted hearing stories about the attack on the victim but categorically denied his involvement, saying the victim may have past grudges against him. He also denied wearing a cowboy hat that night and denied dressing the way they had described him.

21. During cross examination he maintained that he was not at the Morokea junction that fatal night and was not wearing the cowboy clothing said to be worn by State witnesses. The witness denied attacking the victim at the junction and said he was very confused with State aggressive questioning of his involvement that night. He maintained that he never left Kimbe Lodge dance area until 5.30 am the nest day and returned home to Gigo in a bus.

Defence Witness 2 Peter Wama

22. The witness testified of going to the dance at Kimbe Lodge with his winning from Pokies at the Odessy around 10 pm that night, accompanied his nephew. As soon as his money ran out he left for his house around 12 midnight in some relatives vehicle, an old model white Toyota Hilux double cab. As they were about to move out of Kimbe Lodge car park area a 5th Element Double cabin vehicle came speeding towards them but the driver of the vehicle he was travelling in avoided him, averting a fatal accident. The 5th Element vehicle drove off and they also drove off following the Morokea way. When the vehicle he was travelling in stopped at the double bridge area he got off and hurried home and did not know what happened afterwards. The 5th element was in hot pursuit after them at a distance.

23. During examination in chief the witness said he was later arrested as a murder suspect and kept for two nights and later release when he protested to the Buluma Police Station OIC.
Cross examinations

Q. 52. You were both arrested in this case?

A. I don't know about him but in the cells I know he was arrested. I was surprised as I was there but not him.

Q.53 Case against you was dropped?

A. Yes.

Q.54. I put to you that Donius Aol was in Works car with you all?

A. I say no because I was at back of car and he was not with us.

Q. 55 Your motor vehicle pursued the victim's 5th Element correct?

A. We went ahead and they followed us.

Q.57 When Henry Tand parked next to your vehicle, Donius Aol grabbed him and cut him?

A. I don't know about that as I was away. I am surprised his name was called.

Q. 58. I put to you the other reason is that you are trying to save your friend Donius Aol.?

A. I did not see him involved at the time.

Q. 59 I suggest to you that you weren't at Kimbe Lodge at all?

A. Had I not been there I would not have been arrested and put in the cells. I was there.

Defence Witness 3 Justin Kapsuk

24. He is the accused cousin brother from Aiwat village, Gasmatta and is married with 3 children. He testified of being at Kimbe Lodge on 24 January 2009 where his wife works as a waitress from 6pm to 12 midnight. He said the accused had finished work and joined them at the Lodge. Other boys who were there included Hosea, Cameron, David and his brother who was accompanied by his wife. When their beer ran out the accused and two boys went looking for beer and later returned with a white can carton of beer. They sat drinking that beer until it ran out at around 2 am in the morning. Whilst other patrons left the dance area they remained behind and waited for his wife to finish work. It wasn't until 5 am in the morning when his wife finished work and they walked out: His elder brother, the accused, Hosea, Cameron and his wife. He said they walked to his house and as dawn was breaking he walked the accused to the bus stop and returned to his house.

25. On examination in chief he said he was surprised to learn that the accused was blamed for cutting Henry Tand because the accused was with them the previous night. He said he knew the victim very well and said his son was married to a lady from Kimbe and he was likened to as a brother in law to them.

26. On cross examination the witness admitted that he was related to the accused and therefore did not wish him to go to prison. He maintained that the accused was with them until 5 am in the morning. When questioned what colour clothing the accused was wearing that night the witness said he was wearing his blue uniform and black trousers. I note that this answer corroborates with the accused story about the type and colour of trousers and shirt worn that night.

Defence Submissions
Identification.
27. Mr Moses submitted that the circumstances under which identification is questionable in that the victim and the accused were not sober that night, that lighting was very poor as the incident alleged to have happened between 2am and 3am in the morning. Furthermore he said since it was very early in the morning the fear factor in the minds of persons appeared real. As earlier in the evening there was a commotion at the car park and so when Henry Tand saw the same vehicle parked at Morokea Junction with persons armed as described by state witnesses, certain amount of fear was instilled in them. Defence submit that under those circumstances identification was impaired. He said the state's version of the accused vehicle been parked facing Kimbe direction is highly unbelievable and submit that the only light that night was from Henry Tand's vehicle and ask the court to believe their version. Mr Moses rightly pointed out that the onus of proving the element of the charges remain with the state and they have not proven the element of positive identification. Furthermore State also has failed to prove motive and intention. The element of motive was not established as both Henry Tand and the accused had no grudges against each other.

State submission
28. Counsel Bray agreed that the issue was one of identification and recognition. The accused was a well known figure in Kimbe town and easily recognizable due to his unusual height, being very tall. He was seen at Kimbe Lodge early in the evening and identified by all three state witnesses at the scene of the crime. Save for two witnesses Justin Peter was not drunk that evening and acted as body guard to Tand. Mr Bray said the victim was able to identify the accused from the lights coming from both vehicles at the crime scene. Furthermore he was seen at the back of the Works vehicle which overtook at Morokea junction.

Application
Who does the court believe?
29. The accused's version of events was corroborated by the evidence of defense witness, Justin Kapsuk. There is evidence before court that other friends were also with the accused that night including the owner of the Lodge, Eve....In my view, her alibi evidence if sourced, tended and undisputed would put paid to the whole case. But the defense in its wisdom decided against calling this witness. Having said that the alibi evidence of Justin Kapsuk will suffice since state has failed to disturb the alibi evidence.

()
30. There is also evidence that the accused drank 8-9 bottles of beer that night and his son drank about 5-6 bottles of beer. I take judicial notice of the fact that that is likely to be a sufficient consumption of alcohol to make a reasonable person's recollection of events suspect. Furthermore there is evidence that he was kicked and hit his head on the bitumen road and felt unconsciousness momentarily. He had to go to hospital for treatment. Under those prevailing circumstances can the court safely make findings that he can remember clearly what happened? I think otherwise. It is quite possible that he might be recalling the events as he remembers them but that will not usually be good enough in the case of a witness who has been consuming that amount of alcohol and was momentarily hit unconscious. Whatever the situation this court is a court of record and I can only decide a case on the evidence that is presented before me. Here there is insufficient evidence to support a critical part of the State's case.

Issue of identification

31. Secondly the central issue in this trial is whether or not the accused was responsible for the injuries caused to the victim Paul Tand, the question of identification. This Court is now left with the evidence from State witnesses to make a finding of guilt or innocence of the accused.

32. Three State witnesses give eyewitness evidence identifying the accused as being present and involved. I remind myself of the inherent dangers in relying on the correctness of identification to support a conviction. There is evidence before this court that more than 5-6 other persons were seen on the scene of the crime; the quality of lighting especially at 2 am in the morning with only a torch and vehicle headlights still troubles me; it took the victim few seconds to identify the accused; the emotional state of the witnesses at the time of the incident in my view poses serious doubts in my mind. ( John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698.)

33. I find inconsistencies in the three state eyewitness evidence during cross-examination as obviously giving fabricated evidence. I draw inference from some of them here: Henry Tand made no mention of his son attending to his wound and waking him up from his unconscious state of him; that evidence only came from his son, Henry Tand and his son made no mention of lights from the double blinkers that night, such evidence came from Justin Peter. In my view the inconsistence in their respective evidence appeared so glaring the court cannot find favour in the version of events save for the accused's version of events.

Is there any evidence before the Court to show that some other persons may have been responsible for the injuries caused to the victim?
34. The court is left with competing evidence (identification evidence versus alibi evidence) to make a finding as to the presence of an accused at an incident. From the evidence it appears quite possible that some other persons may have been responsible for the harm caused to the victim. All three state witnesses said there were other people also who attacked. Peter Justin said when the victim was chopped they were chased away with stones and bush knives; The victim said he saw 5 to 6 men including the accused who was seated on the left hand side of the other vehicle; His son Derrick Tand said when his father came and stopped next to them they were immediately surrounded by some men. All state witnesses deposed that there were other persons within the close proximity of the crime scene.

35. The three of them were quick to single out the accused as the assailant however none of them were able to identify or give detailed descriptions of other possible assailants that night. After all they maintained that there was sufficient lighting from the vehicle headlights and they could see the accused clearly. What prevented them from failing to recognise or give at least vivid descriptions of the other men who were at the crime scene? There is no evidence showing the possible difficulties encountered in identifying the other men. The only evidence before court is a tunnel vision identification by the three state witnesses on the accused. It follows that any one of those 5 or 6 men could have been the victim's assailant. The question now is why was he pointed out as the assailant, firstly he was a popular figure in Kimbe and known to all, there is evidence that he had a run in with Henry Tand earlier in life and he was seen at the dance at Kimbe Lodge. Are these encounters credible and do they point to the accused as the assailant. The answer to this question still remains unanswered. My assessment is that the identification evidence was of poor quality.

Common sense and logic
36. The accused was pointed out in court by all three state witnesses but is that sufficient for court to draw inference that he committed the crime? They all give the same rehearsed description that the assailant was the accused that night at Morokea junction because he was wearing a cowboy hat, wore a red shirt and long brown trousers. It defies common sense and logic for would be assailants to publicly display their identities in the way described by state witnesses. Furthermore it defies common sense and logic for would be attackers planning an attack on other persons to carry out their assault in the full viewing under bright light or a vehicle headlight for that matter. Under such circumstances I can only detect that the three state witness evidence were fabricated and concocted. They only told court what they wanted court to hear and deliberately left evidence unfavourable to them. It follows that I cannot make findings with certainty and link the accused to the harm caused to the victim.

Is there any evidence before the Court to show that the accused may have been responsible for causing grievous bodily harm to the victim?
37. At the outset no one is single out save for the accused Donius Aol. The accused and his son testified of identifying the accused at the scene of the crime. Their evidence is shrouded with caution as they were under the influence of heavy consumption of alcohol during the dance at Kimbe Lodge. The victims self promoted body guard Justin Peter's evidence could be relied upon as he said he was not drunk that evening. At 2am - 3am in the morning the place was still dark save for lights from the vehicle headlight. Due to inconsistencies in his evidence I cannot say with confidence that he is a witness of truth. His version of events is not believed.

Alibi evidence
38. The accused through his lawyer advanced alibi evidence that he remained behind at the Kimbe Lodge and was not at the scene of the crime. The alabi evidence found corroboration in the evidence of Justin and Peter Wama. Justin said the accused was with him from 2am to 5am in the morning. Peter who was in the Works department vehicle denied seeing the accused in the same vehicle at Morokea junction. The accused and his son however said they saw the accused at the scene of the crime. The victim said he saw the accused seated at the back of the Works vehicle as they overtook them. His son and his body guard Justin Peter made no mention of seeing the accused seated at the back of the Works vehicle which overtook them. In his confessional statement dated 4 February 2009, given within a week from the incident the accused said he was with George Kasup,Justin Kasup and his wife,Exon from mix Central and Samarai and three of George and Exxon's other friends between 12 am and 2 am that day.

39. There is ample evidence that the accused has properly given adequate notice of his alibi evidence hence the burden of proving the accused's guilt continues to rest on the Prosecution. The Prosecution must disprove the alibi. It is therefore incumbent on the Prosecution to establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. There is evidence before this court that the accused was at another place according to the alibi evidence. The prosecution must therefore remove or eliminate any reasonable possibility that the accused was at the place claimed in the alibi evidence. (John Jaminan v The State (No 2) [1983] PNGLR 318.)

It follows that if the State cannot remove or eliminate any real possibility of the accused's alibi the State's evidence must be treated with caution. I therefore cannot make findings with certainty of State eliminating accused alibi evidence.

Are there evidence of all elements of the offence of grievous bodily harm that would support the accused's conviction?
(Unlawful grievous bodily harm and Intention.)

40. Having considered all the evidence in the circumstances of this case I am not satisfied that the accused was within the vicinity of the crime scene. I draw inference from the alibi evidence of Justin that the accused was with him and his friends at Kimbe lodge that fatal night. This evidence has not been rebutted by the State and remains intact. It follows that if he was distanced from the crime scene that night the element of intention would as a matter of course fall through.

41. Applying those principles alluded to above to the facts of this case, I find here that there is insufficient evidence that may link the accused to the grievous bodily caused to the victim. To this end I make finding based on all evidence before me that none of the elements of the offence of grievous bodily harm were present and so the accused must as a matter of law be acquitted.

Verdict
42. Accordingly, I return a verdict of not guilty against the accused. I further order that his bail be refunded to him upon production of his bail receipts.

Verdict: Not Guilty.
_____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused