State v Pendiu [2019] PGNC 90; N7812 (21 February 2019)

N7812

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 827 of 2017

THE STATE

V

BENSON ROBERT PENDIU
Defendant

Kavieng: Kangwia, J.
2019: 18, 19 & 21 February

CRIMINAL LAW – verdict- particular offence – attempted murder – plea of not guilty – trial conducted - no evidence of any overt act that lends support to the charge of attempted murder to be sustained – accused found guilty of alternate charge of grievous bodily harm – accused convicted on the alternative charge of GBH

Cases Cited

SCR NO 7 of 1980; Re s. 22 (A) (6) of the Police Offences Act [1981] PNGLR 28.

Counsel:

Mr. R. Luman, for the State
Mr. M. Mumure, for the Defence

21^st February,2019

1. KANGWIA, J.: This is a decision on verdict. The accused was charged with one count of attempted murder under s. 304 (a) of the Criminal Code Act and alternatively with intention to cause grievous bodily harm under s 315 (b) & (d) of the Criminal Code. Following his arraignment he pleaded Not Guilty and a trial was conducted.
   
2. The State alleged that the victim met the accused and others on the road. Without warning the accused hit the victim on the head and shoulder with a steel torch. The accused’s friends also assaulted the victim. The victim fell down unconscious. The accused and the others left. The victim was found by relatives who transported him to the hospital. He sustained numerous injuries to his body.
   
3. To prove its case the State tendered into evidence by consent the Record of Interview (ROI) in Pidgin and its English translation, affidavit of Dr. Terence Mark with a Medical Report, affidavit of Dr. Joshua Botu with a Dental Report, the affidavits of the investigator and corroborator and a health record book with clinical notes of attendance and treatment given.
   
4. The State called three witnesses whose evidence are briefly as follows;
   

1. Anthony Knox (victim)

His evidence was that on 24 December 2015 at night he was returning from his house when he saw the accused and five others from the vehicle light. He bid them good night and passed them. Then accused came from behind and held him by his collar and accused him of opening his mouth in other people’s problems. .He then grabbed a torch from Moses Knox and hit him five times with it. The others joined in and assaulted him. He could not struggle free. He fell on the bitumen after they tripped him He was kicked while he lay on the ground and he went into unconsciousness. He regained consciousness at the hospital. He sustained a broken collar bone, two lost teeth and head injuries. He denied all suggestions put to him cross examination.

2. Moses Knox (First State Witness)

His evidence was that he was with the accused and other boys who were consuming alcohol. By 11 pm he followed the boys to the village. On the road they met his uncle (victim). He held his torch which was lit. They exchanged greetings and the victim went past. Then the accused grabbed his torch and grabbed the victim by the back collar and hit him five times with the torch. When the victim fell the other men ran in and assaulted the victim. He went to stop them but was assaulted by the accused with the torch. He ran away to get assistance. Returned 10 minutes later to the scene with others but the victim was not there. They called and the victim replied from the bush. They helped him to the hospital. He identified the torch as belonging to his father. He gave his statement to police the same night and signed it later. All suggestions put to him in cross examination were denied but agreed that the accused was discharged from the first charge and later re arrested.

3. Clement Baro (Second State Witness)

The evidence of this witness related to finding the torch on the roadside. He was at his home when he saw the accused and two others walk past. When he went for a shower he found the torch on the roadside. He returned the torch to the owner two weeks later.

5. The defence called the accused and two other witnesses. Their evidence is as follows;

1. Benson Pendui (Accused)

He is the accused. He elected to make an unsworn statement. His statement was that he returned home from work and saw victim consuming alcohol. He was at home when around 9-10 pm Timo Knox told him to follow him to where the boys were drinking. He followed and the boys gave him a quarter to drink but did not drink it. He followed the boys to leave the boys who were making lots of noise.

6. On the way they met Michael and his wife and they walked together. In the light of a passing vehicle he saw a man in unsteady legs who they recognized to be the victim. They greeted him but he did not respond. He called uncle to the victim. The victim went and punched him and he bled on the nose. Victim punched him a second time. Victim took a knife and hit him with it. He pushed the victim and he fell down on the bitumen. From there the victim cut him with a knife. He removed the knife from the victim and followed the boys.
Next day police arrested him for attempted murder. From the police van he saw the victim drinking beer on the road.

1. John Paris (First Defence Witness)

This witness was at home. He went to where the boys were drinking and the accused was also there. He did not drink with them. They then walked together and met Michael and his wife who joined them. Moses Knox who had a torch gave it to Michael. In the moonlight he saw the victim on the road. The boys greeted him but he did not respond. Accused addressed him in their language. Without any response the victim punched the accused. Accused pushed the victim who fell down. Victim was drunk. Xavier tried to separate them when the victim got a knife and cut him on his leg. He took Michael’s wife and went away. He did not see what happened after that. He did not give any statement to police. When he next saw the victim he had no injuries nor was his hand in a sling.

2. Bobau Mangui (Second Defence Witness)

His evidence was that on 25 December 2015 he walked to the road and saw police arrest the accused and was in the police van.The victim was drinking that day and he had no injuries on his body. On18 June 2016 when the accused was released from custody Moses Knox the 2^nd witness for the State apologized to the accused in front of him, and Sebastian and told the accused that he had been told to lie against the accused.

7. The victim further organized his boys to look for the other suspects. He did not witness the actual fight. In cross-examination he disagreed with the medical report which stated that the victim was at the hospital on 25 December 2015 and insisted that the victim was drinking in the village on that day.

8. The above is the evidence from both sides.

9. It is a principle of law that the burden is on the prosecution to prove beyond any reasonable doubt each and every element of the offence charged.

10. The law under s. 37 (4) of the Constitution places the onus on the prosecutor to prove the guilt of an accused person.

11. The Supreme Court in SCR NO 7 of 1980; Re s. 22 (A) (6) of the Police Offences Act [1981] PNGLR 28 affirmed the Constitutional directive under s. 37 (4). In that case his Honor Greville Smith, J. said;

“In my opinion, as a result of s. 37 (4) (a) the law is that the onus is on the prosecutor to prove each and every element of the offence charged beyond reasonable doubt”.

12. I adopt the opinion expressed by his honor to determine the verdict in the present case.

13. The charge of attempted murder under s304 (a) provides;

304. Attempted murder, etc.

A person who-

(a) attempts unlawfully to kill another person; or

(b) ...

is guilty of a crime.

Penalty: Subject to Section 19 imprisonment for life.

14. The elements to be established are a person, attempts unlawfully to kill and another person.

15. The alternative charge of intention to cause GBH under s 315 of the Criminal Code is as follows;

315. Acts intended to cause grievous bodily harm or prevent apprehension

A person who with intent to-

(a) ...

(b) to do some grievous bodily harm to any person; 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

Penalty: Subject to Section 19 imprisonment for life

16. The elements of the offence are, a person, with intent to do Grievous bodily harm, to another person and unlawfully does grievous bodily harm.

17. The issue for determination is whether the State has established the charge beyond any reasonable doubt.

18. In submissions on verdict Mr. Mumure proffered that the accused should be discharged as the offence of attempted murder and the alternative charges were not made out; that the evidence of the State witnesses were not reliable. He referred to the following circumstances as the basis for the suggestion.

19. The First State Witness was the victim’s uncle who testified that Xavier was a victim of a knife attack and not the accused and his evidence of the accused grabbing the torch from him. He was the only witness to give those evidence.

20. There was evidence that the victim was drunk from the day of the assault to the next day and the evidence that the victim was in hospital was at variance with that of the defence witnesses.

21. It was also submitted that the evidence of the Third State witness was not relevant as he was not at the crime scene.

22. The court was asked to place weight on the evidence of the Second Defence Witness as an independent witness and the First Defence Witness whose evidence supported the unsworn statement of the accused.

23. It was further argued that there was no evidence of any overt act to show that an intention to kill was present. There was also no evidence that the group dumped the victim in the bush.

24. Mr. Luman for the State countered that all the elements of the offence were established. There was no issue with identification, the facts were straightforward and the extent of injuries allegedly sustained were consistent with the medical report.

25. Everyone was drunk including the First Defence Witness and he could not be believed as reliable. The evidence on the torch was a recent invention. The accused’s unsworn statement of disarming the victim was a recent invention and even then his statement was not on oath and inadmissible.

26. It was submitted that the State had established evidence proving the offence and a verdict of guilty for attempted murder or intention to cause grievous bodily harm should be returned.

27. This is a case of whose version of evidence is believable from the opposing witnesses who were present at the material time. The victim and the accused have tried to portray themselves as more sober than drunk during the fight. In my view both were greatly intoxicated. The witnesses on both sides were in my view also intoxicated. There is evidence that they were drinking. Under such situation the propensity to present manufactured or watered down evidence is high as it protects and enhances their respective interests.

28. Given that situation it will require an assessment of the evidence and the credibility of witnesses.

A. Evidence.

29. There is variance in the evidence of the victim and the statement of the accused. The victim stated that the accused attacked him first. The accused on the other hand stated that the victim attacked him first.
Their witnesses have followed suit and supported them. The contention of who attacked first is of no relevance in determining whether the State has proved the offence charged.

30. Then there is the evidence of who held the torch that night. That is also not relevant. There is no dispute that the victim was assaulted. Whether a torch was used in the attack is subsidiary to the undisputed evidence that the victim was assaulted. The evidence of the torch may be relevant for purposes of determining whether its use or otherwise lent support to an overt act

31. I have observed the demeanour and credibility of the victim to be an unimpressive and untruthful witness. His answers to questions in cross examination were evasive and wholly in the negative. He tried to portray an impression that he was an innocent bystander set upon by an assailant when the evidence implicated him of his participation in the incident. He also tried to portray the impression that even though he had had some beer he was not drunk when the evidence showed that he had been drinking at his workplace since daytime.

32. The accused on the other hand seemed to be shifty by his statement. He tried to portray himself also as an innocent bystander with minimal participation in the assault. The overwhelming evidence against him was that he assaulted the victim before the other boys came in and continued the assault. It seems the accused exaggerated the assault on him. There is no evidence of the victim punching him twice nor is there any evidence of any medical treatment for the cut he allegedly sustained from the victim.

Nevertheless, he elected to give unsworn statement which is deemed wholly inadmissible.

B. Witnesses

33. The Second State Witness was not an impressive witness. All questions in cross examination were answered in the negative. He gave a calculated account in support of the victim which is obvious given that the victim was his uncle. His evidence on the torch was a recent invention tailored to support the victim. There is contradicting evidence that he gave the torch to Michael.

34. The evidence of the Third State witness is not relevant for the present purposes and is disregarded.

35. The First Defence Witness was also not a credible witness. His evidence of the victim being armed with a knife and cutting Xavier has no support.

36. He was the only witness with that evidence. This in my view is an invention. It was tailored to aid the accused who stated that the victim hit him with a knife. This witness also offered information not sought in cross examination.

When asked, Q. “when was the last time you saw the victim? Ans. The next time I saw the victim he had no injuries or hand in a sling”. It reflects a rehearsed version of evidence to portray a situation that the victim sustained no serious injury.

37. The Second Defence Witness gave evidence of an apology by the Second State Witness Moses Knox on 18 June 2016 to the accused in his presence that he lied because he was forced by the victim to say what he said. This evidence did not feature in the statement by the accused as the most affected person in the outcome of this case.

38. It can be construed as a recent invention also. He further stated seeing the victim continue drinking on the next day being 25 December 2015. That evidence is also an invention and untrue. The medical report shows that the victim was getting treatment at the hospital on 25 December 2015.

39. On the whole none of the witnesses from both sides gave an impression of a credible witness. Their evidence was tailored to support the person they testified for and not as independent witnesses of truth. It all started from the variance in the evidence of who started the fight.

40. Despite the lack of credibility of the witnesses, on the totality of the evidence the following facts remain undisputed:

1 The incident occurred in the night of 24 December 2015

2. The victim was assaulted

3. The accused and the victim were both intoxicated

4. The accused and the victim confronted each other first. The accused pushed the victim. The victim fell down on the bitumen.

5. The other boys continued the assault on the victim when he was on the ground.

6. The victim sustained various injuries from the assaults as recorded in the Medical and Dental reports.

7. No weapons were used in the assault

41. These undisputed facts do not lend support to the charge that the accused attempted unlawfully to kill. There is no evidence of any overt act that lends support to the charge of attempted murder to be sustained. It is unsafe to draw an inference that the victim was dragged into the bush and left to die in the absence of any evidence to that effect.

42. The victim did testify that he was dragged and left to die however it contradicts with his other evidence that he was unconscious and regained consciousness at the hospital. The evidence that he was dragged is in my view opinionated. The possibility that the victim walked or crawled into the bush in his semi-conscious state also exists.

43. However the facts do lend support to the alternate charge by the State that there was an intention on the part of the accused and the other boys to cause grievous bodily harm to the victim and did grievous bodily harm to the victim. Intention to cause grievous bodily harm can be inferred from the extent and seriousness of the injuries. It is reflected in the medical and dental reports of the doctors that the victim sustained numerous injuries including some which were grievous.

44. The source of the injuries cannot be attributed to any person or incident other than the accused and the other boys.

45. A verdict of Guilty for the alternative charge under s 315 (b) of the Criminal Code must be returned.

46. He is formally convicted of intention to cause grievous bodily harm under s 315 (b) of the Criminal Code.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defense