State v Iona [2018] PGNC 332; N7391 (25 July 2018)

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CRIMINAL LAW – trial on verdict – section 319 of the Criminal Code Act Chapter No. 262 – grievous bodily harm – whether the accused was at the crime scene – whether the accused was identified – whom to believe

John Beng v. The State [1977] PNGLR 115
State v. Elsie Wabi (2009) N3662
State v. Joe Ngotgnot and Eremas Matiul (2016) N6306
State v. Ray Johnson (2016) N6379

1. ANIS J: This is a decision on verdict. The accused was charged with the offence, grievous bodily harm, under section 319 of the Criminal Code Act Chapter No. 262 (CC Act) on 3^rd January 2018.

2. The trial on verdict was heard at Kibil in Duke of York, East New Britain from the 24^th to the 25^th of May 2018. Presentation of submissions hearing was held in Kokopo on 7^th June 2018. I reserved my decision thereafter to a date to be advised.

ISAIAH IONA of MIOKO PALPAL, DUKE OF YORK, EAST NEW BRITAIN PROVINCE stands charged that he on the 31^st day of December 2017 at Mioko Palpal in Papua New Guinea unlawfully did grievous bodily harm to Paul Ezekia.

5. The brief facts presented by the prosecution in support of the indictment reads:

On the 31^st of December 2017 between 11pm and 12 midnight the accused was at Mioko Palpal, Duke of York Island. It is alleged that the accused, his brother Lesley Iona and their father Alipet Iona brought a group of other young men into the premises of the victim’s family. They threw stones at the victim’s home and started a fight with the victim’s family. The victim Paul Esekia came to stop the fight. As Paul Esekia was trying to separate the accused from his (Paul’s) brothers, the accused picked up a piece of brick and hit the victim on his forehead. The victim fell to the ground. While the victim was unconscious on the ground, the accused pulled out a knife. He was about to stab the victim when he was punched by Jack Issac.

The victim sustained a fractured skull as a result of the assault. The State further alleges that by his actions the accused unlawfully caused grievous bodily harm to the victim. The charge is laid pursuant to s.319 of the Criminal Code.

6. The prosecution called two (2) witnesses. They were (i) the victim, Paul Esekia and (ii) Isaac Jack. The defence called one (1) witness who was the accused. In regard to documentary evidence, the prosecution tendered without contest, a total of six (6) documents. The defence on the other hand tendered one (1) document. The prosecution’s documentary evidence are marked as “Exhibit P” followed by a number. The defence’s document is single and it is marked as “Exhibit D 1”. I set them out below herein:

Exhibit No.	Description	Date Filed
“P1”	Record of interview, English and Pidgin versions	28/03/18
“P2”	Patient referral letter	01/01/18
“P3”	Two x-ray photographs	undated
“P4”	Photograph of a brick	undated
“P5”	Corroborator’s statement, Constable Joanne Yauwe	28/03/18
“P6”	Statement of Constable Jemma Maibogu	04/04/18
“D1”	Patient referral letter	03/11/17

7. The main issue is identification. To determine that, I must decide on whom I should believe on what happened at that New Year’s night on 31^st December 2017. Did the prosecution witnesses identify the accused as the person responsible for the injury the victim sustained on that night? If the answer to that is a ‘yes’, the next question is, whether the injury sustained amounts to grievous bodily harm within the meaning of section 319 of the CC Act.

8. Identification as the primary issue, may I remind myself of the dangers, that is, when considering and deciding whether to convict a person based solely on identification evidence when identification is the only issue for trial that will decide whether it was the accused that committed the offence. In the present case, the incident occurred in a village setting at night time on New Year’s Eve in 2017. Evidence adduced indicate that people were celebrating or feasting at the time the incident occurred. The Supreme Court in the case of John Beng v. The State [1977] PNGLR 115, cautioned judges to be mindful of the dangers when faced with this type of situation. The Supreme Court held and I read in part:

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

11. The prosecution’s first witness was the victim Paul Esekia. He said as follows. He said that on 31^st December 2017, between 11pm and 12am, he was at his house at Rapindik in Mioko village. He said that from there, he heard people shouting outside. He said he enquired and he was told that there was a fight at Rapaen village, which he said was his mother’s village. He said he got up from there and ran towards his mother’s village. From there, he said he was told that the accused had started a fight with his brothers. He said there was a moonlight that night and he could see what was happening. He said the accused was fighting with his brothers. He said he walked over and separated the fight, that is, he said he pulled apart the accused and his two (2) brothers. He said that just then, he saw the accused bent down, picked up a piece of brick and hit him on his forehead with it. He said he was standing 3 meters away from the accused when the accused threw the brick at him hitting him on his forehead. He said he felt blood pouring down from his face. He said he fainted and fell to the ground. He identified the accused by pointing to him in Court.

12. The prosecution’s second witness Isaac Jack said as follows. He said that he was present at the fight that night when the accused assaulted Paul. He said before that, the accused, his father Iona Alipet and his other brother Leslie Alipet started a commotion at Rapaen village. He said the group destroyed some of his families’ properties before the fight. He said from there, the accused went on and started a second fight with his cousin brothers on a small field. He said the whole fighting went on for about 1 hour and 30 minutes. He said that from the second fight, the accused fought with Ezekial Esekia, Johnson Penias and Esekial Penias. He said the victim Paul Esekia approached them to stop the fight. He said after Paul had pulled them apart, the accused stepped back, bent down, picked up a brick and hit Paul’s face with it. He said he saw Paul Esekia fall to the ground. He said he was standing about 3 to 4 meters away when these happened. He said he intervened and punched the accused in the face to protect Paul Esekia. He said he did that because he saw that the accused had pulled out a knife from his pocket. He said when the accused realised that Paul was unconscious and was on the ground, he fled from the scene. He said there was moonlight that night and the place was clear. He said that was how he saw the accused. He identified the accused in Court by pointing to his direction.

13. The defence called the accused to testify. This is what he said. He said at the material time, he was ill. He said he was and is still suffering from an injury to his groin. He said there were three (3) incidents that occurred at the material time. He said he did not know of the first two incidents. By that, he was referring to the alleged destruction of property at the victim’s mother’s village at Rapaen, and as to the second incident, he was referring to the fight where the victim had been assaulted. In relation the third incident, he said that that was when he was assaulted. He said at that time, he was escorting his parents to drop off Leslie’s visitors. He said Ismail and Paul Bobby approached and attacked him at the Court house area of Mioko. The accused’s accounts of the dates and timing were not clear as I will address below in my judgment.

14. I find many inconsistencies in the evidence of the accused. I say this based on what he had told police in the record of interview, and compared that with his sworn evidence in chief and in cross-examination. Let me explain. Firstly, in the record of interview, at question 22, the accused was asked in relation to the third incident. The accused said in response that the incident occurred two (2) days after the fight in 2017 New Year’s Eve. However, in his sworn evidence, he said several contradictory things. In examination in chief, he said that he was assaulted at 12 mid-night. He said that he did not know the exact date of the assault on him but he said that his parents would know. But then this. During cross-examination, the prosecution’s first question was, “New Year’s Eve, 31^st December 2017, there was a fight over a dispute?” The accused answered, “I wouldn’t know, I was at the hospital.” Later on and upon being pressed on by the prosecution that the accused was not at the hospital but was in fact at his village, the accused agreed and said that he was home on that day sleeping because he was ill. When he was asked about the third incident where he had alleged that he was assaulted, the accused said that he was assaulted at 11pm on and I quote, “last year on New Year’s Eve” at the Court House area at Mioko Palpal village. Upon being pressed on again by the prosecution, the accused said that he was attacked on the same New Year’s Eve of 2017 after the church services and after the commotion or the fight at his aunt’s house. By that, he was referring to the first incident. That was also another major inconsistency. In summary, the accused had changed the dates and the accounts of his alleged assault four (4) times. Firstly, in his record of interview, he told police that he was assaulted two (2) days after the fight on 31^st December 2017. Secondly and in cross-examination, he told the Court that he was assaulted at 11pm at midnight but he said did not know the date. Thirdly and in cross-examination, he told the Court that on 31^st December 2017, he was admitted to a hospital which had implied that he could not have committed the offence on 31^st December 2017. Fourthly and in cross-examination, he told the Court that he was assaulted on 31^st December 2017, that is, after the two (2) incidents. With these inconsistencies of accounts coming from the accused, it would be very difficult, in my view, for this Court to believe anything that the accused has told the Court.

15. I also find his demeanour unimpressive. He did not look convincing when he was testifying in Court. I note that he may not have been feeling very well at that time because he looked physically weak at the witness stand. That said, he was under oath and there was nothing suggested by his counsel that he was incapable of testifying in Court. He seemed lost with questions that were straight forward and at many instances the prosecution had to press him to change his story. For example, the fact that he was never at the hospital on 31^st December 2017 but was rather at his village. The accused had insisted that he was away at the hospital at that time and date because he was very ill until he was later disproven by the prosecution at which time he changed his story and claimed that he was assaulted after the two (2) incidents on that night.

16. As for the prosecution witnesses Paul Esekia and Isaac Jack, I would say these. I find their accounts to be accurate and consistent. I did not detect anything that would suggest that they were not telling the truth. I note that the incident occurred at night time. However, both witnesses testified that there was good moonlight shining on that night on 31^st December 2017. They also said that the second incident had occurred at the separate location out on a small field and that it had involved only those specific boys that were there. They said they both stood about 3 to 4 meters away and they were able to identify and see that it was the accused that had picked up a brick and had had it thrown directly at the forehead of the victim. They also said that they were cousins of the accused and that they knew each other well which was why they were able to identify the accused that night. They both also identified the accused in Court.

17. I am satisfied beyond reasonable doubt that the accused was present in the second incident that night on 31^st December 2017; that he was the person that had picked up a piece of brick as described by the state witnesses; that it was he that threw the said piece of brick at the victim’s forehead which injured the victim. Now, having made these findings, I must consider whether the injury sustained by the victim at that time qualified as grievous bodily harm within the meaning of section 319 of the CC Act.

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

19. The elements of the offence grievous bodily harm (see cases: State v. Ray Johnson (2016) N6379; State v. Joe Ngotgnot and Eremas Matiul (2016) N6306; State v. Elsie Wabi (2009) N3662) are as follows:

20. The accused has been identified as the person who was responsible for hitting the victim on his forehead with the piece of brick. I note that no formal defence or justification that is based on law, has been raised by the accused. The victim has been identified as Paul Esekia. Three (3) of the elements of the offence grievous bodily harm have been established to my satisfaction, that is, beyond reasonable doubt. There are, “a person”, “who unlawfully” and “another person”.

21. The question I have now is this. “Did the injury suffered at that time constitute grievous bodily harm?” The term grievous bodily harm is defined under section 1 of the CC Act. It states, “grievous bodily harm" means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health. Let me refer to the case State v. Ray Johnson (supra). At paragraphs 19 and 20, I said and I quote:

20. My reading and understanding of the provision is that the first element is mandatory and it must be proven together with either the second or the third element, if an injury is to be legally regarded as or constitute 'grievous bodily harm'.

23. Let me now say the following. Firstly, I am satisfied that the victim Paul Esekia suffered a bodily injury. The bodily injury was a deep laceration to his front forehead area and a fractured skull. The wound was caused by a piece of brick that was thrown by the accused at the victim’s forehead at New Year’s night on 31^st December 2017. I refer to the referral letter by the Vatnabara Health Sub-centre dated 1^stJanuary 2018. The letter was tendered in Court and marked as Exhibit P2. I note that the victim has also pointed to the scar on his forehead in Court at one point, as he testified. The scar markings were clearly visible and have deformed the victim’s forehead. I refer to and take into account the victim’s testimony of what he said happened to him that night. I also take into account the prosecution’s second witness Isaac Jack’s testimony and his account of what he said happened that night on 31^st December 2017.

24. When I consider all that, I say these. I firstly find the injury to be permanent. The victim’s skull at the forehead area is permanently scared. It is also slightly bent inwards at the point of impact area on the victim’s forehead, which is physically visible. The victim will now have to live with that deformity for the rest of his life. I also find that the victim’s life was in real danger when he was struck with the piece of brick. A photograph of the said brick was tendered and is marked as Exhibit P4. Fracturing of the skull could have easily led to internal bleeding of the brain which could have had fatal consequences. It seems quite clear that the victim was fortunate enough to have survived the ordeal.

25. I am therefore satisfied, that is, that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of grievous bodily harm pursuant to section 319 of the Criminal Code Act upon Paul Esekia on 31^st December 2017.

Verdict: Guilty as charged
________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Iona [2018] PGNC 332; N7391 (25 July 2018)