State v Pagapaga [2015] PGNC 54; N5979 (21 May 2015)

N5979

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOs. 1062, 1063, 1064 & 1065 OF 2014

THE STATE

V.

WEST PAGAPAGA
JOHN PAGAPAGA
WILLIAM TADE
NORMAN KILLION

Kokopo: Higgins, J.
2015: 14th, 15th, 18th & 21st May

CRIMINAL LAW – Section 322 Criminal Code Act 1974 – Complainant pursued and assaulted by a group of men. One accused pleads guilty - Contradictory evidence by both State and defence witnesses – proof beyond reasonable doubt required – evidence falls short of that standard – relevant witnesses not called – Discussion of Prasad direction - doubt as to recognition of accused – acquittal ordered.

Cases cited:
Papua New Guinea cases

Reference by Allan Marat [2012] PGSC 20
State v Yali [2005] PGNC 17
R v Smith [1956] PGSC 7
R v Richard Hutchings (1972) N710
State v Towavik [1981] PNGLR 140
State v Aquila [2004] PNGLR 1
State v Wairo [2004] PNGLR 3
Pawa v State [1981] PNGLR 498
R v Lui [2004] PNGLR 15

Overseas Cases

Shepherd v. R [1990] HCA 56; [1990] 170 CLR 573
HML v. R [2008] HCA 16
Momcilovic v. R [2011] HCA 34

Doney v. R [1990] HCA 51; (1990) 171 CLR 207
LK v The Queen (2010) 241 CLR 177
Queen v Prasad (1979) 23 SASR 161
R v. Bailiff [2002] ACTSC79
Dyers v R [2002] HCA 45; (2002) 210 CLR 285
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
RPS v R [2000] HCA 3; (2000) 199 CLR 620

Counsel:

Mr. Tendui, for the State
Ms. Kasa, for the Accused

June, 4th 2015

1. HIGGINS, J: The 4 accused (West Pagapaga, John Pagapaga, William Tade & Norman Killion) are charged by the State as follows; that they:
   

On the 25th day of March 2014 unlawfully injured Andrew Nakamura.

2. Each has pleaded not guilty. The State alleges that each of these accused participated in an assault upon Andrew Nakamura leaving him with a laceration to the head from a blow that caused him to lose consciousness. He suffered pain and discomfort from other blows.
   
3. At the outset of the trial, another accused, Russiat Tade, pleaded guilty to the charge and was remanded on bail for sentence. That plea in no way supports or affects the case against the other accused.
   
4. I remind myself that in any criminal trial in this nation, the State bears the onus of proving each element of the offence alleged against each accused. The guilt or otherwise of each accused must be considered separately from the case against each other accused.
   
5. The standard which the State must meet in discharging that onus of proof is beyond a reasonable doubt. That is a high standard but it is the right of any accused person to be judged by no less a standard. That standard implies no more or less than the natural and ordinary meaning of those terms as ordinarily understood.
   
6. It also follows that an accused person bears no onus of proof or persuasion. The State bears that onus throughout the trial unless the law specifically allows an exception. That is not the case here.
   
7. An accused person is also entitled to a presumption of innocence. That is a substantive entitlement. It does not only imply that the accused is regarded as innocent unless and until the State proves otherwise beyond reasonable doubt but also that the evidence from which the State seeks to draw inferences adverse to an accused must be capable of bearing only that inference, albeit that other evidence accepted may enable or require that inference when the evidence is considered as a whole. See Shepherd v. R [1990] HCA 56; [1990] 170 CLR 573; HML v. R [2008] HCA 16; Momcilovic v. R [2011] HCA 34.
   
8. No accused person is obliged to offer a rebuttal of the charge or the matters alleged against him or her. He or she is entitled to decline to do so and no adverse inference may be drawn from that silence or lack of meaningful response or cooperation.
   
9. Lies told by an accused may be different but only if such lies rationally support an inference of consciousness of guilt on the part of the accused.
   

State v Yali [2005] PGNC 17; Reference by Allan Marat [2012] PGSC 20; R v Smith [1956] PGSC 7.

10. The charges against the accused are laid pursuant to Section 322; Criminal Code Act 1974 (the Code) i.e.
    
    • (1) A person who–
      

(a) unlawfully wounds another person;

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

11. Wounding for the purposes of this offence refers to the breach of the full thickness of the skin of the person. – (see R v Richard Hutchings (1972) N710).
    
12. The word "unlawfully" excludes from the scope of Section 322 of the Code acts causing a wound which are done in self-defence (s269 of the Code) or in accordance with lawful authority, or excused by some specific law such as Section 267 of the Code (provocation) or acts done accidentally. (see State v Towavik [1981] PNGLR 140 per Mileng, J).
    
13. That is, the act causing the wounding must be done intentionally and with the object of applying hostile force to the person of the victim whether or not a specific intent to cause a wound is present.
    
14. The State also calls in aid the provisions of Section 7 of the Code:
    

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(c) every person who aids another person in committing the offence;

15. In the present case the State contends that each of the accused was one of a group including Russiat Tade who pursued the complainant, Andrew Nakamura, with a view to assaulting him. He was tackled to the ground by Russiat Tade and then struck a number of blows by one or more of the group with Russiat Tade including at least one blow from a hard object which caused the wound to his head.
    
16. It is not necessary for the State to prove which, if any, of the accused struck the blow which caused the wounding of the complainant. It must, however, prove that any accused to be found guilty of the offence, participated in the pursuit of the complainant with the intent that he be assaulted, knowing that there was a real risk that the complainant would be injured and that such injury might well include wounding. It might be found that some accused did participate but it may not be proved beyond reasonable doubt that another did. The fact that they are related and shared the same issues with the others of them in relation to the complainant does not establish their guilt, though it is a circumstance to be considered.
    

ISSUES

17. In the circumstances of this case there is no issue but that the injury to the complainant was a wound, nor that those who pursued him intended that he should be assaulted by some of them at least. Nor it is in issue that a foreseeable consequence of the pursuit and subsequent assault was bodily harm, including wounding, of the complainant. Nor is it disputed that each of those engaged in the pursuit, might reasonably be found to have shared in that common purpose.
    
18. The issue is whether the 4 accused or any and, if so, which of them, participated in the pursuit of the complainant with the intent that he be assaulted. That could include urging or inciting the pursuit though it is the State's case that they were each part of the pursuit.
    
19. I also note that, although it is part of the factual background to this case that earlier in the day the complainant and one of his nephews and his brother assaulted one of the accused, namely, Norman Killion, that does not nor can it, assuming that is what happened, amount to provocation under Section 267 of the Code. Nor is it so relied on by Ms Kasa for the accused, and rightly so. If the accused had any grievance of that kind, including as it did an allegation of theft of mobile phones and a basket, the proper course to follow was not self-help but a complaint to police. It is not lawful to pursue a person, even if he or she has committed an offence to administer punishment. That is an assault and calls for deterrent punishment.
    

THE EVIDENCE

20. By consent, the State tendered the records of a police interview between each of the accused (Ex 1 – Ex 4) John Pagapaga (1), William Tade (2), Norman Killion (3) and West Pagapaga (4). They were recorded in Pidgin and were accompanied by an English translation. There was no issue as to the accuracy of the translation.
    
21. Essentially, each accused chose to decline to answer questions and offered no positive response to or rebuttal of the accusations put to them. That was their right and no adverse inference arises from that choice.
    
22. A medical report confirming the injury to the complainant was also tendered by consent. That injury was consistent with an assault but, of course, does not provide any evidence as to whether any of the accused or any person acting in concert with them or any one or more of them caused that wound.
    

ANDREW NAKAMURA

23. Andrew Nakamura, the complainant, gave sworn evidence. He is aged 22 years and a university student. His evidence was given in Pidgin and translated into English.
    
24. He stated that earlier in the day in question, 25 March 2014, he was at Vunapope Market seeing his mother who had a stall there. He met two of his nephews, Edward and William Salhuteru there. This was about 5pm.
    
25. They were joined by Andrew Nakamura's elder brother Steven Nakamura. He had ridden his bicycle from Skowhegan Service Station to the Tropicana Store. There, he said, he was assaulted and fell off his bicycle. He ran to the Market and met up with the 3 of them there.
    
26. The 4 of them then went to where the incident had allegedly occurred. They found the accused Norman Killion and another person, John Sim, and a fight broke out between them. After the fight Norman Killion left. A mobile phone belonging to Steven Nakamura had gone missing. He believed the accused, Norman Killion, had taken it.
    
27. That fight and who was at fault in it are not relevant save as background though it explains why the complainant believed the accused Norman Killion and his associates might be minded to wreak revenge upon the complainant.
    
28. Later in the day, the complainant and his nephew Edward Salhuteru went to the Skowhagen Service Station to buy cigarettes. They left there and walked back towards Tropicana. The complainant later clarified that William Salhuteru was not there with them but met them on the way to Tropicana. It was now 6 to 6:30pm.
    
29. At about the entrance to Tropicana, there was a group of "these boys". The group comprised, the complainant said, of the 5 accused and about 10 others. It was then getting dark. He could not identify the 10 others.
    
30. There was some shouting from the group. It was in the Tolai language and sounded aggressive.
    
31. He and Edward began to run away as did William, but the latter did not continue to run with them. There was a group of the men following them. They ran back towards Skowhegan and down to the beach front. The complainant was then tackled to the sand by Russiat Tade. Some of those following them then assaulted the complainant. He asserted that each of the other 4 accused was involved in assaulting him and he was struck in the head by two stones, losing consciousness.
    
32. Next he recalled being attended to by a woman. His phone was ringing in the sand. He retrieved it and spoke to his mother. He had a big cut to his head and his body, he said, felt numb.
    
33. In cross-examination by Ms Kasa, he conceded that his nephew William had not been with them but only met with them on the way from Skowhegan and was not chased by the group of men. He further clarified that some of the men chased after Edward as he was being caught by Russiat Tade. However, he said he recognised each of the 4 accused as part of the group attacking him. He knew them well from his village.
    
34. Ms Kasa then asked him to explain why it was that he did not name them when making his statement to police. He had named only Russiat Tade. He asserted that after his statement was given he told police of the other 4 names. They said they would record that but did not do so.
    
35. It was suggested by Ms Kasa that he had not recognised the 4 accused given the melee, the darkness and the fact that as soon as he was struck he covered his face and then became unconscious.
    
36. He was also asked about his assertion that the group of men he had been confronted by was about 15 in number. That did not appear in his statement to police.
    
37. Again, he asserted, he told police this but they omitted to record it. He also contended that nearby security lights enabled him to recognise the accused as his assailants.
    
38. He denied that certain persons, named by Ms Kasa, were those who, with Russiat Tade, assaulted him rather than the accused.
39. In re-examination, the complainant made the somewhat strange assertion that he had recognised the voices of the 4 accused though he did not see their faces.
    
40. This, volunteered to the prosecutor in re-examination, was somewhat at variance with his earlier testimony.
    

EDWARD SALHUTERU

41. This witness deposed he had been at Skowhegan Service Station with the complainant to buy cigarettes. They then walked towards Tropicana meeting his brother William on the way.
    
42. Past Tropicana they met a group of men. The group comprised the 5 accused (including Russiat Tade) and about 10 others. The 3 of them then ran away. William Salhuteru stopped at the Big Rooster shop. Asked why he ran, Edward replied "They were carrying knives". Earlier on, he added, he and the complainant had had a fight with Norman Killion.
    
43. He then clarified that only John Pagapaga had a knife, a bush knife.
    
44. He asserted that it was only the 5 accused who chased him and the complainant. He was ahead, looked back and saw the 5 of them attacking the complainant. He asserted that he watched that for about 15 minutes before leaving to go to his house.
    
45. In cross-examination, he conceded that the presence of the 4 accused was not mentioned in his police statement. He mentioned only Russiat Tade and some unidentified others. He too, asserted that he told police the names of the accused but the police failed to record them.
    
46. Neither had he mentioned to police that all 5 men assaulted the complainant or that he stayed watching it for 15 minutes. He signed his statement, he said, without reading it and so did not note the omissions.
    
47. Indeed, his statement asserts that he fled the scene without stopping. He had not referred in it to John Pagapaga or anyone else having a knife.
    
48. This witness is at variance with the complainant on one very important matter. That is that the group in pursuit of them comprised not just the 5 accused but also many, if not all, of the other 10 men. It gives rise to the suspicion that Edward Salhuteru was embellishing his evidence to explain how he had the opportunity to see and recognise the 5 accused assaulting the complainant which would not have been the case had there been an active pursuit of himself after the complainant was tackled and there was a crowd of men involved from whom he fled without stopping. His reference to 10 other men is suggestive of collaboration, albeit incomplete, with the complainant.
    

WILLIAM SALHUTERU

49. This witness told the court that at about 6pm he went alone to Tropicana. There he saw the accused West Pagapaga, John Pagapaga, William Tade, Russiat Tade and Norman Killion. There were ten other men he did not recognise. They were chasing after someone to fight or assault them, he assumed. He did not know who they were chasing. He then left the area and returned to his house.
    
50. At the back of the group of men, he said, was John Pagapaga. He had a bush knife. None of the others was armed.
    
51. Under cross-examination by Ms. Kasa, he admitted that he had told police it was William Tade who had the knife. He further claimed that William Tade had interrogated him as to whether he was with "them" pointing the knife at him. He was surrounded by the group. He told them he was not. The men then went off towards Skowhagen. He did not know who or where those who were being chased had gone.
    
52. Clearly, the prosecution case was in disarray. On the accounts given by Andrew Nakamura and Edward Salhuteru, William knew very well who was being chased. Indeed, both of them said that, for some distance at least, William was pursued with them.
    
53. William first supports but then disagrees with the proposition advanced by Edward Salhuteru that John Pagapaga had held a bush knife. If anyone had such a weapon it was not used to assault Andrew Nakamura. It may well be an embellishment to explain why they ran and heighten the menace they considered themselves to be facing.
    
54. While each of the 3 agree that there were 10 others with the five accused, Edward Salhuteru claims that only 5 of the 15, namely the accused, pursued and caught Andrew Nakamura. That was clearly to explain why he did not flee the scene as he would have had to do if pursued by the other 10 or any of them.
    
55. It is admitted that Russiat Tade assaulted the complainant. It is more than likely the complainant was assaulted by more than one person. That he was pursued by a number of persons is a reasonable conclusion. After all, if only Russiat Tade pursued the two of them, they could easily have resisted.
    
56. Was it five or fifteen who pursued the complainant and Edward Salhuteru? Was it some other number? That there was a fight earlier involving Norman Killion is not disputed. Nor is it disputed that Norman Killion and the other accused went to the Nakamura residence and spoke to Steven Nakamura about Norman Killion's missing phone and basket. They were directed to see John Sim at Tropicana who, they were told, had the missing property. That event was not disputed by the prosecution.
    
57. It is interesting that no violence was offered to Steven Nakamura, though it appears he was involved in the earlier fracas and, indeed, had started it. The group then went to Tropicana, not in search of the complainant, but to recover the missing property.
    
58. That is not to dismiss an inference that when they saw Andrew Nakamura and Edward Salhuteru, revenge would not have suggested itself. Indeed, the meeting with William Salhuteru supports an inference that some, at least, of the group intended to engage with Andrew Nakamura and any other person who had attacked Norman Killion and deal with them if they came across them.
    
59. I am satisfied that that was why Russiat Tade pursued Andrew Nakamura and Edward Salhuteru. The question remains as to who else pursued them.
    

60. That was the prosecution case.

61. Ms Kasa then submitted no prima facie case.

62. It is important to distinguish two responses to a flawed State case.

63. The submission that there is no case to answer is sustainable if and only if the evidence, taken at its highest will not sustain a verdict guilty. Doney v. R [1990] HCA 51; (1990) 171 CLR 207@ 214-5; LK v The Queen (2010) 241 CLR 177 @ [29].

64. In the present case, if the evidence of the 3 State witnesses is accepted, there is evidence to sustain a verdict of guilty against the 4 accused.

65. The alternative submission would be that notwithstanding that a prima facie case exists, it is insufficient to exclude reasonable doubt as to the guilt of the accused. This is based on the case of the Queen v Prasad (1979) 23 SASR 161. In essence, usually at the conclusion of the prosecution case, a judge or magistrate may stop the trial if the prosecution case is such that it would be unsafe to convict upon the evidence so presented without calling on the defence to call any evidence and enter a verdict of acquittal. Even if the defence was not successful in that submission, a verdict of guilty is not open until the defence has had the opportunity to call evidence. – per King CJ

"I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it" (see generally 'when should a judge stop a trial' Andrew Hemming [2013] UNDAL Law Review 56.)

66. In the defence case, Ms Kasa called each of the accused in turn. I have to bear in mind that none of the accused was obliged to give evidence and subject themselves to cross-examination by counsel for the State. Further, that they give evidence casts upon them no onus, evidentiary or otherwise, to persuade the Court that their version of events is true. Unless their evidence actually supports the prosecution case or by lies, supports an inference of guilt otherwise conveyed by the prosecution evidence, the mere fact that it is unpersuasive is not enough to support an otherwise insufficient State case. See R v. Bailiff [2002] ACTSC79.

67. Bearing that in mind, I turn to the defence evidence.

WEST PAGAPAGA

68. Between 5-6pm on 25 March 2014, he said, he and the other 4 accused came to Tropicana to retrieve Norman Killion's property, then believed to be in the possession of John Sim at Tropicana. John Pagapaga and Norman Killion went into the Tropicana compound. He and William Tade had diverted to the Markets to get betelnut to chew. At Tropicana, John Pagapaga went inside with Norman Killion. Russiat Tade waited outside. Then, he said, "these boys came" and Russiat Tade chased them. The 'boys' were Andrew Nakamura and Edward Salhuteru. They all ran out of sight. Neither he nor William Tade followed.

69. Later Russiat Tade came and met them at Big Rooster and told them about the fight. John Pagapaga and Norman Killion were still at Tropicana. There were no weapons and he saw no other persons.

70. In cross-examination, he said he had been told that, earlier in the day, Edward Salhuteru and Andrew Nakamura had attacked Norman Killion and taken some property of his. Steven Nakamura had also been involved. They went to the Nakamura house and saw Steven Nakamura and his mother. They were told the property was with John Sim at Tropicana. Mr Sim had been with Norman Killion when he was attacked by the Nakamura brothers and Eldward Salhuteru.

71. He denied he was angry with the complainant and the others who attacked Norman Killion. He said they went to get the phone and basket back and not to fight.

72. He further denied taking any part in chasing and assaulting the complainant.

JOHN PAGAPAGA

73. He was also told about the confrontation with Andrew and Steven Nakamura and Edward Salhuteru. He and the 4 other accused went to the Nakamura house and spoke to Steven Nakamura. The latter said that John Sim had the property so they all set out for Tropicana where Mr Sim was employed. It was about 5-6pm.

74. He and Norman Killion went in to the Tropicana compound. He did not see William Salhuteru. He was not in possession of a bush knife. West Pagapaga and William Tade had gone to the Market to buy betelnut. He did not chase Andrew Nakamura. When he and Norman Killion came out of the store, the other 3 were nowhere to be seen. He was then confronted by relatives of Andrew Nakamura and told that Russiat Tade had assaulted Andrew Nakamura. The relatives took them to the police station under the apparent belief that those two accused had taken part in the assault.

75. In cross-examination, he denied any desire to have revenge upon the complainant or any other participant in the attack on Norman Killion. He had counselled against any such objective. It was enough, he said, to get the property back.

WILLIAM TADE

76. He is Russiat Tade's elder brother. He had been told by Norman Killion that the latter had been attacked by Steven Nakamura, the complainant and Edward Salhuteru. He understood Norman Killion's mobile phone and bilum (basket) were missing. With the other accused he went and spoke to Steven Nakamura who said the property was with John Sim. John Pagapaga had told them not to fight anyone, just get the property back.

77. On the way to Tropicana, they passed by the Markets. He and West Pagapaga decided to go and buy betelnut to chew. They had started out between 5 and 6pm but none had a watch.

78. After they got the betelnut, they resumed the walk to Tropicana but in the gathering gloom could not see any of the other 3. However, they did meet William Salhuteru. William Tade took hold of him and asked him if he had been "one of them". I assume that was understood to have referred to the attack on Norman Killion. He said he was not so they left him and proceeded to Big Rooster. They were then met by Russiat Tade, Ben Okele, Kenneth Laupu and Fridoline Pabet. Russiat said they had just attacked Andrew Nakamura. This does not accord with West Pagapaga's evidence that he saw only Russiat Tade. This was, he said, about 7pm.

79. In cross-examination, he agreed that he and the other accused were all relatives. He was aware that the earlier fight was said to have started when Steven Nakamura nearly bumped into Norman Killion with his bicycle causing the latter to be nearly hit by a motor vehicle in getting out of the way. Norman Killion said that he slapped Steven Nakamura who mobilised his relatives including the complainant and Edward Salhuteru. There was then a fight between them.

80. He agreed he was angry that Norman Killion had been attacked but said John Pagapaga told them they should not fight, just get the property back.

81. It was dark when they got to the Markets and he did not see Russiat Tade or any of the others with him chasing anyone. He was only aware of the confrontation from what Russiat Tade later told him. He was not challenged with West Pagapaga's lack of observation of the 3 persons with Russiat Tade after the assault upon the complainant.

NORMAN KILLION

82. This accused said in evidence that he was at Market Bus Stop about 5pm having just finished work at Tropicana.

83. Steven Nakamura rode his bicycle straight at him so he had to jump out of the way, being then nearly being hit by a PMV (bus). He was with John Sim. They called out to Steven Nakamura to stop but he rode on. They got on the bus and went to Tropicana Bus Stop, arriving ahead of Steven Nakamura. They intercepted him and called him over. Norman Killion remonstrated with him. Steven Nakamura swore at and punched Norman Killion who retaliated. They exchanged punches. Steven Nakamura then left saying he was going to get his relatives (wantok). It was by then around 5:30pm. Edward Salhuteru and Andrew Nakamura came and, with Steven Nakamura, assaulted them and took Norman Killion's basket including 3 mobile phones he had for repair for customers.

84. Norman Killion went to his house and informed his relatives, the other 4 accused, of what had happened. John Pagapaga, the eldest, said they should go to Steven's house to get the property back but take no weapons and not fight.

85. Steven Nakamura told them John Sim had the property.

86. It appears that no violence was offered to Steven Nakamura which supports the claim that the group was complying with John Pagapaga's direction.

87. He said that they walked down to Tropicana. On the way, William Tade and West Pagapaga stopped at the market to buy betelnut to chew. The other 3 hurried on ahead. This was about 6:45pm and it was already dark.

88. Norman Killion and John Pagapaga went into the Tropicana compound leaving Russiat Tade at the gate. They were told they had to wait to see John Sim as he was busy in the store. He would finish about 8pm. They waited and saw him. They were then told he did not have the property. They left and were confronted by relatives of Edward Salhuteru and Andrew Nakamura. The two of them were apprehended, assaulted and taken to the police station. They were held without charge for about 2 weeks and then released.

89. In cross-examination, he claimed that the times of 5pm and 5:30pm were accurate as they were checked respectively on the wall clock at Tropicana and with a bus passenger who had a watch. Only 2 of them were allowed in to Tropicana because of company policy regarding security. He had John Pagapaga as his witness if needed and to speak for him.

90. It was suggested that this story was a convenient ploy to avoid their responsibility for chasing and assaulting Andrew Nakamura. He denied this. I have to say that it was not a very persuasive story but no evidence was offered by the State to contradict it.

91. The final witness was Russiat Tade.

RUSSIAT TADE

92. He is now only 16 years of age, last year he would have been 15. He was in fact present in Court when the other witnesses gave evidence. That does lessen the weight to be placed upon his evidence.

93. Unsurprisingly, his account largely matched that of his relatives, the other accused. He said that when he was outside the gates of Tropicana a vehicle drove by. In its headlights he saw Edward Salhuteru and the complainant. He shouted out to them. They ran away so he chased them. William Salhuteru was in the vicinity of them but he did not run.

94. He ran to Big Rooster then along the beach. He wanted to speak to them, he said, about Norman Killion's property. He caught Andrew Nakamura who resisted and hit him. He was then joined by three others, Ben Okele, Kenneth Laupu and Fridoline Pabet. Fridoline Pabet was an uncle of his, the other 2 were friends of his uncle. They all assaulted the complainant. After they finished with him, they returned to Big Rooster and met West Pagapaga and William Tade. The 6 of them then walked off together.

95. This, he said, was what he told police.

96. His statement, which became defence exhibit 1, bears out some of that. It mentions nothing of John Pagapaga's call for restraint. He does say that, at the Nakamura house, Steven Nakamura told them that Andrew Nakamura was down at the beach. He does not mention John Sim.

97. They all walked down to Tropicana, he said in his statement. There the complainant (known as 'Mondo') and Edward (referred to as 'Edovat') were met at Tropicana. They saw "us" and ran. He continued "and my other uncle's they ran along the beach from Big Rooster towards Skowhegan".

98. He caught and restrained "Mondo" who was whipping him with his bilum. Fridoline Pabet then came and struck the complainant with a stone.

99. The complainant fell to the sand, apparently unconscious. The 4 of them then walked back to Skowhegan and there met West Pagapaga and William Tade. He told them "Fridoly assaulted Andrew Nakamura ("Mondo") already".

100. In cross-examination, he was asked to explain why, if he believed John Sim had the property, he had chased the complainant and Edward Salhuteru to recover it. The true motive, it was suggested, was to assault them. His response in denying that was unpersuasive.

101. It was suggested to him he was emboldened to chase the two because he had others with him. He denied that though he conceded he had referred in his statement to his "other uncle's" taking part in the chase. The prosecutor suggested that the persons in pursuit were the 5 accused as well as the 3 men he had named. He denied the 5 accused were present. He said it was only the three he had mentioned. It does seem to me unlikely he would have pursued both Edward Salhuteru and the complainant unless he had others with him, whether or not those others included some or all of the other accused.

102. That was the case for the defence.

103. I have no doubt that none of the witnesses told the whole truth. The prosecution witnesses clearly were motivated to ensure that all five of the accused were convicted. Thus it cannot be assumed that their purported recognition of the accused as participating in the pursuit of the complainant was based on their recollection as opposed to their supposition and a desire to see those they assumed to be responsible punished.

104. Some support for that hypothesis can be found in the differing accounts of the complainant and Edward Salhuteru. The former has 15 men including the 5 accused pursuing them. The 5 accused and some others assaulted him, the rest went after Edward Salhuteru.
     
105. Edward Salhuteru says only 5 men, the 5 accused, pursued them. They caught and assaulted the complainant and none pursued him. Thus he was able to return and see the assault on the complainant.
     
106. William Salhuteru says he saw a group of 10 men plus the 5 accused pursuing someone towards the beach area. He does not know who was pursued. This story is also unlikely to be true. If his brother was being pursued, he would know it. If indeed, he met with the accused or some of them, he clearly must have assumed there would be a fight if they caught up with "them". He clearly understood "them" meant those who had earlier fought with Norman Killion.
     
107. His evidence of 10 men being present with the accused and that John Pagapaga had a bush knife was, I believe, contrived. Indeed, in his statement to police he claimed William Tade held a bush knife. He said William Tade and others questioned him before he observed the chase.
     
108. I have grave doubts as to whether the accused were each truly observed by these witnesses.
     
109. Indeed, Edward Salhuteru's evidence of only 5 men attacking the complainant, with the prosecution accepting that the 3 persons identified by Russiat Tade were also present must exclude some of the accused from the pursuit if that evidence was to be accepted.
     
110. Certainly John Sim was said to have been identified by Steven Nakamura as having the stolen property. John Sim was not called by the prosecution. I can only assume his evidence would not have assisted the prosecution. None of the three, Ben Okele, Kenneth Laupu and Fridoline Pabet was called. They have not, it seems, been questioned by police. I do not know if they would support or not the prosecution case or whether they would, as they could do, stand mute.
     

111. Dyers v R [2002] HCA 45; (2002) 210 CLR 285 makes it clear that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 direction can rarely be used to invite an adverse inference even to the extent allowed by that case, against an accused. Further, it is the duty of the prosecution to call all relevant witnesses unless there is a good reason not to.

112. In the present case, had the accused not given evidence, only the contradictory and unsatisfactory evidence called by the State could be considered. A reasonable doubt as to whether each of the accused accompanied Russiat Tade in pursuit of the complainant could not have been eliminated.

113. The evidence of the accused including Russiat Tade was also contradictory and unsatisfactory. But for the prosecution accepting that the 3 persons named by Russiat Tade were present as assailants, a reasonable concession in the light of the latter's statement to police, their presence might have been rejected as a contrivance by the accused.

114. Once a potential crowd of 8 persons was available to pursue the complainant that one or more of the accused was not one of them cannot be excluded beyond reasonable doubt. In the circumstances, I can only assume the prosecution would not have been assisted by their evidence. Indeed, it would be only if they had no part in the events of the evening that they might assist the prosecution. If the defence had wanted to call them they would, no doubt, have been reluctant to incriminate themselves. See Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 as qualified by RPS v R [2000] HCA 3; (2000) 199 CLR 620.

115. William Tade and West Pagapaga get support from Russiat Tade's statement. John Pagapaga could well be the peacekeeper he is claimed to be. The behaviour of the 5 with Steven Nakamura is consistent with that. It is also not disputed that Steven Nakamura referred the 5 to John Sim for the recovery of Norman's property.

116. There are some observations I need to make concerning this evidence. The first is that even if tendered by the accused, the evidence of co-offenders must be treated with caution, particularly in drawing inferences adverse to the accused. See eg. State v Aquila [2004] PNGLR 1 per Kandakasi J. The failure of the State to call relevant witnesses may well be taken to weaken the prosecution case. It may be assumed that the evidence would not assist the State's case. (See State v Wairo [2004] PNGLR 3 per Lenalia, J). The contrary proposition was explained in Pawa v State [1981] PNGLR 498 (per Kearney DCJ, Andrew & Kapi JJ). The other is that mere proximity to an offence is not sufficient to prove complicity (see R v Lui [2004] PNGLR 15 per Lenalia, J).
     
117. In the present case, the presence of the accused at Tropicana does not suffice to establish that they were complicit in the assault upon the complainant. Participating in the pursuit of the complainant would evidence such complicity.
     
118. In the circumstances of this case, that becomes the central issue.
     
119. Ms Kasa for the defence submitted that the witnesses for the State who were called seriously contradicted each other on important matters.
     
120. The complainant claimed that he and Edward Salhuteru were pursued by the accused and ten others. That the accused all assaulted him and others pursued Edward Salhuteru. He said John Pagapaga had a bush knife. There was no evidence it was used. He had not identified any of his attackers except Russiat Tade according to his police statement. He referred to 4 others with Russiat but otherwise did not identify them. He claimed to have told police their names but they failed to record them. That contrasts with the fact that although they were not interviewed, police did record in Russiat Tade's statement the names of the 3 persons he claimed to have come to his assistance.
     
121. A similar criticism was levelled at Edward Salhuteru. He similarly fell back on blaming police for not recording his identification of the accused other than Russiat Tade.
     
122. William Salhuteru had been said by each of the complainant and Edward Salhuteru to be with them when they were chased. Indeed he was said by Edward to have run with them some considerable distance before stopping. His evidence contradicted this and his statement contradicted his own evidence that John Pagapaga had a bush knife. Though he said he did not know who was being chased he had told the men who challenged him that he was not "one of them", betraying some knowledge of those involved as the objects of the chase.
     
123. Ms Kasa also pointed to the evidence that the two accused Norman Killion and John Pagapaga were apprehended together and only they were taken to Kokopo Police Station. That, she said was consistent with their evidence of being at Tropicana till 8pm. Again, no witness was called by the State to gainsay that contention. It was simply assumed that the 5 who visited the Nakamura house were those who led the assault on Andrew Nakamura. It was clearly open to the State to advance evidence of the time and place that Norman Killion and John Pagapaga were apprehended.
     
124. Given that the accused bore no onus of proof or persuasion, their testimony could not be dismissed as untruthful, given the contradictions in the prosecution case, although it was by no means persuasive.
     
125. Mr Tendui, for the State, contended that the three State witnesses all agreed that the 5 accused chased the complainant. He submitted that the evidence of the 5 accused was improbable and should be rejected. The 4 accused other than Russiat Tade were simply attempting to distance themselves from the attack.
     
126. The claim of William Tade & West Pagapaga not to have observed the other 3 ahead of them going to Tropicana and not seeing them till after the assault on the complainant, should, he submitted, be rejected as improbable.
     
127. Similarly, the claim of Norman Killion and John Pagapaga to have been in Tropicana at the relevant time, for about 90 minutes, simply to ask John Sim if he had Norman Killion's property, could not be believed.
     
128. All the accused had a motive to wreak revenge on the complainant. They are all related and seeking to support each other to leave responsibility only with Russiat Tade, a juvenile.
     

EVALUATION

129. The State's case is persuasive in its simplicity. The 5 accused had a grievance against the complainant. They went in search of him and those who had assaulted Norman Killion. They found and beat him severely including a strike to the head with a stone. All the State's witnesses recognise the accused as each being present as part of the pursuit.
     
130. However, the State does bear the onus of proving its case, at least as to the essential elements of it, beyond reasonable doubt. The objective facts are that the assault occurred in darkness. The relevant areas were not well-lit. The lights referred to by the complainant and Edward Salhuteru were not designed to illuminate the beach, though they may have tempered the gloom somewhat. The complainant, on his own account was quickly felled to the ground and covered up. It cannot be safely assumed that he could see and identify those assaulting him apart from Russiat Tade who felled him.
     
131. Edward Salhuteru's evidence was not persuasive. I do not believe he stayed watching the complainant being assaulted by 5 men for 15 minutes. That was made up to support his identification of the accused as the assailants.
     
132. As to William Salhuteru, he certainly did have a conversation with some of the accused and others. However, he is also an unreliable witness. His placing a knife with John Pagapaga and then William Tade and the latter threatening him is, I consider, also a lie. But he was asked if he was associated with the assault on Norman Killion. That request could only have come from one or other of the accused.
     
133. Nevertheless, the evidence of that witness does not enable it to be concluded that each of the accused pursued the complainant. His professed lack of knowledge of the pursuit supports that view.
     
134. Certainly, the State case does not exclude the hypothesis that each accused was involved, with others, in chasing down the complainant and assaulting him. However, it does not establish that case against each of the 4 on trial to the standard required in a criminal trial.
     
135. Had the case stopped there, the accused would have had to be acquitted. One or more of them but not necessarily all of them may have been part of the group chasing the complainant but it could not be said that each of them did or which of them did take part.
     
136. That said, as the accused chose to call evidence and give evidence, that evidence must be evaluated as with that of any other witness to see whether, at the end of the trial it has strengthened or otherwise the case against the accused.
     
137. The evidence of the 4 accused distancing themselves from the chase of the complainant was not persuasive. If they bore any onus of persuasion they would have failed to meet it. Russiat Tade was clearly not telling the whole truth. It may well be, as Mr Tendui contended, he was unwilling to reveal what he knew of the other persons additional the 3 he named, who took part in the assault on the complainant. I agree with that submission but accepting it does not enable a conclusion that he was protecting all or merely some of the accused.
     
138. It follows that whilst the defence case does nothing to weaken the prosecution case, it does nothing to confirm it sufficiently to enable the conviction of the accused.
     
139. They are each found not guilty and discharged from bail.
     

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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused