Independent State of Papua New Guinea v Maka [2014] PGNC 164; N5816 (14 November 2014)

N5816

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No.1205 of 2013

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:

YAKINIWA MAKA
Accused

Mt. Hagen: David, J
2014 : 13 & 14 November

CRIMINAL LAW – verdict – accused charged with one count of unlawfully doing grievous bodily harm – trial - Criminal Code, Section 319.

The accused was charged with one count of unlawfully doing grievous bodily harm to the victim after she refused to give him money. He pleaded not guilty and a trial followed. The prosecution relied on documentary evidence tendered by consent of the defence. The accused was the sole witness for the defence. He gave sworn evidence and was subjected to cross-examination. During the trial; the accused raised the defence of alibi, but was abandoned after objection raised by the prosecution; and he also challenged the Record of Interview which contained admissions or incriminating statements alleging that he was threatened by police with guns and raising issues of involuntariness. No notices of alibi and voir dire were given.

Held:

1. Although the defence of alibi was abandoned, it was nevertheless found that evidence of alibi was false, no notice of alibi having been given and it was delayed and belated.
   
2. The challenge to the Record of Interview was improper, no notice of voir dire having been given.
   
3. All elements of the offence under Section 319 of the Criminal Code were proven beyond reasonable doubt.
   
4. Accordingly, the accused was found guilty of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code.
   

Cases cited

The State v Paul Kundi Rape (1976) PNGLR 96
John Jaminan v The State (No 2) [1983] PNGLR 318
Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145
The State v Steven Hawa (1999) N1874
The State v Martin Maso Naipo, CR No.92 of 2004 Unreported & Unnumbered Judgment of Kirriwom, J delivered at Lae on 21st of June 2005
The State v Ali Kei Paiya, CR No.478 of 2004, Unreported & Unnumbered Judgment of Sawong, J delivered at Lae on 9th of August 2005
The State v John Baimo Kaole (2009) N3842

Counsel

Joe Kesan, for the State
Edward Sasingin, for the accused

VERDICT

14th November, 2014

1. DAVID, J: INTRODUCTION: The accused, Yakiniwa Maka appeared before me from custody on a charge that on 6th of September 2013 at Sip village in the Baiyer District of Western Highlands Province, Papua New Guinea, he unlawfully did grievous bodily harm to one Win Kupiwa (the victim) contrary to Section 319 of the Criminal Code. The accused denied the charge so a trial followed.

BRIEF ALLEGATIONS

2. On the 6th of September 2013 at about 11:00 o'clock during the night, the accused was at his village of Sip in the Baiyer District of the Western Highlands Province. That, night he went to the house where the victim was living armed with an axe. He went in and asked the victim for some money because she was his former wife. The victim refused to give him some money. The village magistrate Kap Rop who was present at the time told the accused to leave the house because he and the victim had separated a long time ago and his presence there was unnecessary. When the village magistrate left, the victim went to sleep. The accused then went back to the house with his axe and chopped the victim three times on the right side of her head. The victim fell to the ground and was unconscious. The accused left her and fled during the night.

PROSECUTION CASE

3. The prosecution case consists only of documentary evidence admitted into evidence by consent of the defence and the relevant documents are:

1. Record of Interview dated the 18th of September 2013 - Exhibit "A1", original Tok Pisin version.
   
2. Record of Interview - English translation (Exhibit "A2").
   
3. Medical Report of Nelson Tony, CHW from the Christian Apostolic Fellowship Church Health Ministries – Simbimale Health Centre, undated, (Exhibit "B").
   

4. I summarise the prosecution evidence below.

Record of Interview

5. The Record of Interview was conducted at the CID Office, Mt. Hagen Police Station on the 18th of September 2013. The interview was conducted by Detective First Constable Fidelis Rowe in Tok Pisin and Sergeant Patrick Tonwingo was present at the interview as corroborator.
   
6. He is from Sip village, Baiyer District in the Western Highlands Province, a villager and earns a subsistence living. At the time of the interview, he was aged 28 years and single.
   
7. On Friday, the 6th of September 2013 between 11:00 pm and 12:00 o'clock midnight, he was at home, but went out to ask for some money from the victim who was at Silimanda. The victim refused to give him any money. The Record of Interview contains admissions at Question and Answer 17 which I set out verbatim below.
   

Tok Pisin

"Q17. Bihain wanem samting kamap?

Ansa Em tok bai mi ino inap givim mi coins. So Kap tu tok, mipela ino save long yu so yu go. Na bai yu ino nap maritime dispela meri so yu go olgeta. Mi belhat long dispela toktok na mi usim ston wantaim tamiok na paitim meri ya. Sapos em ino hatim bel bai mitupela istap orait."

English

"Q17. What happened next?

Ans: She said that she will never give me coins. So Kap too said, "We don't know you so you go. You will never marry this woman so you go for good". I got angry with this words so I hit the woman with stone and an axe. If she did not make me angry we should be alright." (sic)

Medical report

8. It reports that the victim, aged over 30 years, was brought to the Simbimale Health Centre on a stretcher at 9:30 am on Saturday, the 7th of September 2013 for treatment and was hospitalised and appropriately treated. Upon examination, she was in a semi-conscious state. She had several lacerations (x3) on the left side of her head. Each laceration was 1.5 cm deep and 5 cm in length and the lacerations were sutured with a total of 12 stitches. One laceration required 5 stitches, another required 4 stitches and the final one required 3 stitches. The victim lost about 500 mls of blood. She also sustained a right chest injury and one of her ears was slightly severed.

NO CASE TO ANSWER SUBMISSION

9. At the close of the prosecution case, the defence made an unsuccessful no case to answer submission under the first limb of the principles enunciated in The State v Paul Kundi Rape (1976) PNGLR 96.

DEFENCE CASE

10. The accused was the only witness called to give evidence in support of his case. He gave sworn evidence and was subjected to cross-examination.

11. He is from the Baiyer District of the Western Highlands Province.

12. Asked in examination-in-chief if he could recall events of the 6th of September 2013, he said no. Asked in examination-in-chief if he knew the victim, he said no. Asked in cross-examination as to when he had for the first time heard the name of the victim, he said it was when he was questioned by police to write a report. He was in his village when he was arrested. When arrested by the police, he told them that he did not commit the offence. He had an alibi. At about 11:00 o'clock that night, he was at the village in his house with his family and had gone to sleep so he did not know who assaulted the victim. At the objection of Mr. Kesan of counsel for the prosecution for the accused giving evidence to support an alibi without proper notice, Mr. Sasingin for the defence refrained from asking further questions touching upon an alibi.

13. Asked in examination-in-chief if he ever got married to the victim, he said no. When arrested and questioned by police from the CID about the incident, he said he was threatened to admit to committing the offence because according to them no one else was responsible. Asked in examination-in-chief if the police used anything to threaten him with, he said the Task Force was brought in and its members were armed with guns.

14. Asked in cross-examination whether he has talked to a lawyer about his arrest before the trial, he said he was interviewed by a female lawyer whilst in custody at Baisu sometime this year, but he could not recall the exact date. He told the lawyer that he did not know the victim, he had an albi and that he was threatened by the police with guns to make an admission.

SUBMISSIONS
Defence

15. It was submitted by the defence that the only contested issue was whether the accused was responsible for the assault of the victim? Mr. Sasingin submitted that there was no dispute that the victim was assaulted by someone and sustained bodily injuries on the night of the 6th of September 2013 as was evidenced by the Medical Report. However, the Medical Report did not confirm that the accused was the person responsible for the injuries counsel said.

16. With respect to matters contained in the Record of Interview, it was submitted that appropriate weight be given.

17. It was submitted that the prosecution fell short of establishing the charge because it failed to call the victim and the village magistrate to give evidence which was crucial on the question of identification. The allegations against the accused were not supported by evidence it was further submitted.

18. On the other hand, it was submitted that the accused was a credible witness. Counsel said his demeanour in the witness box was good and he was firm with his answers to questions asked under examination by both counsel. It was submitted that the accused was a truthful witness whose evidence should be accepted and believed.

19. As to the whether or not the accused gave instructions to his previous lawyer about being threatened by police and that he had an alibi, the lawyer was not present to provide an explanation to the Court counsel submitted.

20. The prosecution case fell short of identifying the accused as the perpetrator on the criminal standard of proof it was further submitted.

Prosecution

21. It was submitted that the Record of Interview contains admissions by the accused. This was raw evidence against the accused counsel said. The accused does not deny making the admissions to police it was further submitted.

22. As to whether the accused gave instructions to his former lawyer about an alibi, the Court should not believe the evidence it was further submitted. The alibi was only recently raised in Court during trial, so it was false and strengthens the prosecution case according to the principle in the leading Supreme Court decision of John Jaminan v The State (No 2) [1983] PNGLR 318 counsel submitted.

23. It was further submitted that the allegation raised by the accused about the Record of Interview should not be entertained because no challenge or proper challenge was mounted against the admission of the Record of Interview.

UNDISPUTED FACTS

24. From all the evidence before me and submissions of counsel, I consider that the undisputed facts are these.

1. The victim is from Sip village in the Baiyer District of the Western Highlands Province and resides there.
   
2. The accused is also from Sip village and was residing there before his arrest and detention.
   
3. On the 6th of September 2013 during the night, someone caused grievous bodily harm to the victim.
   
4. The victim sustained injuries to the left side of her head (3x lacerations) and right chest and an ear was slightly severed.
   
5. The victim was admitted to the Simbimale Health Centre on the morning of 7th of September 2013 where her injuries were appropriately treated.
   
6. Each laceration was 1.5 cm deep and 5 cm in length and the lacerations were sutured with a total of 12 stitches.
   
7. One laceration required 5 stitches, another required 4 stitches and the final one required 3 stitches.
   
8. The victim lost about 500 mls of blood.
   
9. The perpetrator's action was unlawful.
   

CONTESTED FACT

25. From all the evidence before me and submissions of counsel, I consider that the only principal contested fact is that the accused was the person who unlawfully did grievous bodily harm to the victim.

THE OFFENCE

26. The accused was indicted with one count of unlawfully doing grievous bodily under Section 319 of the Code. Section 319 states:

"A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years."

27. In order to convict an offender of the offence, the prosecution must prove beyond reasonable doubt the following essential elements of the offence:

1. A person;

2. did grievous bodily harm to another person; and

3. he did it unlawfully.

ISSUES

28. The principal issue for my consideration and determination is whether or not the prosecution has proven all the essential elements of the offence beyond reasonable doubt to ensure a conviction? The secondary issue arising from the contested fact which is relevant to the determination of the principal issue is whether or not the accused was the perpetrator?

REASONS FOR DECISION

29. This is a case that rests very much on whose evidence I should accept and believe. At this juncture, I must remind myself that the defence cannot establish the prosecution's case. It is the prosecution that must prove its case against an accused person from evidence it calls.

30. In the present case, I am invited to determine the guilt or otherwise of the accused on documentary evidence relied on by the prosecution over the sworn oral evidence given by the accused in his defence. As I have alluded to earlier, the documents constituting the documentary evidence were tendered by consent of the defence. I am also aware of the inherent dangers of convicting an accused upon documentary evidence tendered for the prosecution by consent which has not been tested by cross-examination: The State v Steven Hawa (1999) N1874.

31. I am also aware that a couple of cases have advanced the view that little weight should be attached to incriminating statements made in records of interview which were unsworn out of court statements and have not been tested in cross-examination as against sworn evidence of an accused person which has been tested in cross-examination where more weight should be given. These cases are; The State v Martin Maso Naipo, CR No. 92 of 2004 Unreported & Unnumbered Judgment of Kirriwom, J delivered at Lae on 21st of June 2005 and The State v Ali Kei Paiya CR No 478 of 2004, Unreported & Unnumbered Judgment of Sawong, J delivered at Lae on 9th of August 2005.

32. In The State v Martin Maso Naipo, it was observed that:

"... the only reliable evidence given under oath and tested in cross-examination is what the accused told the court. That is what must be believed. The court need not place much weight on the accused's record of interview which is an out-of-court statement although tendered by consent of the defence."

33. In The State v Ali Kei Paiya, it was observed that:

"It is also trite that whilst a record of interview which is not contested is evidence, it is not of equal weight to the sworn evidence. Sworn evidence which has been tested or untested in cross-examination has far more weight than an unsworn statement."

34. The Court in both cases accepted the accuseds' sworn evidence over the incriminating statements made in the respective records of interview and returned verdicts of not guilty in favour of both accused.

35. I think a cautious approach needs to be taken in such a situation and I would adopt and apply the approach taken by Cannings, J in The State v John Baimo Kaole (2009) N3842 where His Honour observed:

"41. ....considerable care needs to be taken not to elevate it to a rule of law that says that if an accused gives sworn evidence rebutting what he said to the police the court must by necessity give more weight to the sworn evidence. That is not what was held in either of the two cases referred to.

42. The weight to be attached to an accused's sworn testimony will depend on the normal factors that decide whether any witness's evidence is believed such as the witness's demeanour and the credibility of the evidence in light of other evidence before the court.

43. The weight to be attached to a confessional statement or record of interview will need to be assessed having regard to the circumstances in which any incriminating statements were made to the police and whether any objection was made to their admission into evidence."

36. It is trite that finding of credibility is usually dependent on matters such as the degree of logic and common sense as well as the demeanour of the witnesses in the witness box and consistencies in their evidence.

37. Of the three essential elements of the offence that the prosecution has to prove beyond reasonable doubt, I am satisfied that the prosecution has proven the second and third elements namely, that the victim suffered grievous bodily harm and the perpetrator's action was unlawful. The question I therefore ask is who was the perpetrator?

38. During the course of his evidence, the accused tried to raise an alibi as his defence. He said he instructed a female lawyer this year at the Baisu Correctional Institution where he is currently incarcerated about the defence. He said he was at the village in his house with his family and asleep at about 11:00 o'clock that night so he did not know who assaulted the victim. This was being attempted without the prior filing of a notice of alibi under Order 4 Division 2 of the Criminal Practice Rules 1987. Mr. Kesan correctly raised his objection against the accused continuing to give evidence of alibi and defence counsel Mr. Sasingin did not contest the objection, but refrained from asking further questions on the proposed defence instead. The defence also did not seek leave for the accused person to continue to adduce evidence of alibi under Order 4 Rule 4 of the Criminal Practice Rules 1987. I consider that the defence counsel's conduct amounted to an abandonment of the defence.

39. In any event, the accused did not call evidence from any other person to support his alibi: John Jaminan v The State (No.2). This was a delayed and belated alibi and I give no weight to the evidence of alibi. It is a false alibi.

40. During the course of his evidence, the accused also tried to challenge the Record of Interview which appears to me to be made on the basis that it is alleged that he was threatened by police with guns and raises issues of involuntariness. No notice of voir dire was given to the prosecution for that purpose so as to give the prosecution an opportunity to prepare to meet such allegations on the trial on the voir dire or trial proper. I would reject this aspect of the accused's evidence as well.

41. It is settled law that the negligence of a lawyer to take appropriate steps to protect his or her client's interest is not a good excuse: eg, Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145. I note however that the female lawyer who it is alleged by the accused was given instructions about his alibi and the challenge to the Record of Interview was not present to provide an explanation to the Court or respond to the accused's allegation against her.

42. My findings on the defence of alibi and the Record of Interview essentially mean that the accused has not adduced before me any cogent or credible evidence in response to the prosecution case.

43. It is settled law that an alibi that is determined to be false may, depending on the circumstances of a particular case, corroborate and strengthen the prosecution's case: John Jaminan v The State (No.2). I would apply this principle in favour of the prosecution in the present case. So the admissions or the incriminating statements in the Record of Interview remain unchallenged. No application of the principles of identification evidence is necessary in the circumstances nor is the prosecution's failure to call and adduce evidence from the victim and the village magistrate detrimental to the prosecution case.

44. Moreover, the demeanour of the accused in the witness box was poor suggesting that he was not a truthful witness.

45. I am satisfied beyond reasonable doubt that the accused is the perpetrator who unlawfully did grievous bodily harm to the victim using a stone and an axe on the night of 6th of September 2013 between 11:00 pm and 12:00 o'clock midnight at Sip village in the Baiyer District of the Western Highlands Province. The first essential element of the offence has been proven.

46. Has the prosecution proven all the essential elements of the offence beyond reasonable doubt to ensure a conviction? Yes. All the essential elements of the offence have been proven beyond reasonable doubt.

47. I will return a verdict of guilty

__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused