State v Minapo [2019] PGNC 124; N7861 (15 May 2019)

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CRIMINAL LAW – Grievous bodily harm – section 319 – Criminal Code Act Chapter No. 262 – whether the amended date in the indictment and brief facts are inconsistent with State evidence – whether the allegation is clearly made out against the accused – whether the State has discharged the required standard of proof, that is, beyond reasonable doubt

The accused was alleged to have assaulted the victim, who was a co-worker, with a rock. The victim sustained a bone fracture to his right arm from the alleged attack. The accused denied that it was he that attacked the victim. The accused said he paid visits to the victim on the night on the date as pleaded in the indictment, but at different times and not on those times alleged.

ANIS J: This was a trial on verdict. It was initially heard at the Kokopo National Court and later continued at the Kerevat National Court during my circuit for the month of May.

3. Let me summarise the charge and the brief facts. The accused is charged with committing grievous bodily harm to one Michael Kopilyo (Michael). The charged is laid pursuant to section 319 of the Criminal Code Act Chapter No. 262 (Criminal Code).

4. The incident is alleged to have occurred on 6 March 2015 between 2am and 3am in the morning in the yard of this company, East West Transport, at Takubar in Kokopo in East New Britain. The allegation is this. Michael worked as a security guard at that time. He locked himself inside one of the trucks that had been park there and took a nap. The accused approached him, open the door of the truck, swore at him and asked Michael if he had been sleeping. The accused entered the truck and that was when Michael pushed him away. The accused picked up a rock on the ground and hit Michael’s right hand with it. Michael felt great pain on his right arm so at day break, he went to the hospital and found out that he had sustained a fractured bone.

5. The State called one witness that is Michael. The accused gave sworn evidence in reply. I list the tendered exhibits as follows:

Exhibit No.	Description	Date
P1	Statement of George Kaminiel - Corroborator	23/01/16
P2	Statement of police investigator – John Kamau	13/01/16
P3	Affidavit of Dr. Tony Walters with attached medical report	8/02/16
P4	Records of interviews – Pidgin and English versions	22/01/16

6. Section 319 of the Criminal Code states, and I quote in part, A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

7. In this case, the main issue is whether the accused was the person who assaulted Michael in the earlier hours of the morning of 6 March 2015. The accused denies going to the company yard at 2am or 3am as Michael has alleged. Rather, the accused says that he went to the company yard at about 10pm to 11pm and later at 4:30am in the morning, and he denies assaulting Michael inside the yard. He claims that Michael had mistaken him for someone else who may have attacked him in the early hours of that morning.

8. Before anything else, I cannot help but notice the date of the alleged incident in the indictment. Initially, it was put down that the incident occurred on 6 March 2016. Before the close of the State’s case, counsel sought leave without objection and amended the year of the incident in the indictment, to 2015. So, the new alleged date of the incident was stated as 6 March 2015.

9. Michael of course was the sole witness for the State who testified. On the subject matter and during examination-in-chief, Michael was asked whether he could recall the date when the accused had climbed into the truck and broke his right arm. Michael’s answer was, “2^nd June 2016”. During cross-examination, it was put to Michael whether the incident had occurred on 2^nd day of June 2016. Michael’s response was, “yes”. The very next question that followed was, “Is it correct that the incident did not happen to you on the 6^th day of March 2016?” And Michael’s response was, “No, it happened on Tuesday 2^nd June 2016.” The State, in re-examination, had one question for Michael, which was this. “The incident happened in 2015 or 2016?” And Michael’s response was, “2016”. Michael, I observed, was forceful and he appeared very certain of the date and time he gave to both his lawyer and the defence lawyer.

10. So right there, the State, in my view, lacks evidence to support the allegation as pleaded in the indictment or based on the brief facts. Its only witness Michael, who was the alleged victim in the matter, gives a different day, a different month and a different year of when the incident was said to have occurred. I note that the record of interview was tendered, and the State may refer to that for argument. But in the record of interview, the date of the incident alleged therein was alleged and put to the accused by the interviewer, which was, 6 March 2015. However, the accused had maintained in the record of interview that on that day, he was working and had gone to see Michael at 11pm and later at 4:30am on the next day to collect the security radio, but he denied ever assaulting Michael. As for the medical report, I note that it was prepared together with Michael’s examination, some nine (9) months after the alleged incident, that is, if we assume that 6 March 2015 was the correct date of the incident. The evidence (i.e., medical reports), in my view, is vague and cannot be linked to the accused nor to the alleged incident. The accused has also maintained in his sworn evidence that he never assaulted Michael. His evidence is consistent with his testimony given in the record of interview.

11. Let me also say this. There is a danger I see where the parties may be arguing in parallel. Let me explain. Let us assume that this Court accepts the evidence adduced by Michael and regard the date of the incident as 2 June 2016. And I note that Michael’s evidence covers what he said transpired on that day up to the time of his alleged assault. For the accused, however, right from the time of the record of interview up to the time he gave evidence, he was responding or basing his evidence or his side of his story on the allegation of the incident which was said to have occurred on 6 March 2015, not 2 June 2016. I note that questions that were put to him in examination-in-chief and in cross-examination, were based on his accounts of 6 March 2015 and not 2 June 2016. There is therefore a real danger of witnesses testifying or giving accounts on different events on different dates.

12. These therefore create, in my view, other possibilities, speculations or assertions. The State evidence of the primary facts in my view are tenuous and substantially flawed. I am also not satisfied that the State has discharged its required standard of proof.

13. I find that the State has failed to prove beyond reasonable doubt the allegation of grievous bodily harm against the accused under section 319 of the Criminal Code.

14. The case must end, and the accused must be immediately discharged from custody.

Verdict: Not guilty
________________________________________________________________
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 Minapo [2019] PGNC 124; N7861 (15 May 2019)