State v Osara [2023] PGNC 509; N10881 (5 November 2023)

N10881

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0 582 OF 2021

THE STATE

V

RYAN OSARA

Lae: Kangwia J
2023: 12^th October & 5^th November

CRIMINAL LAW – Unlawful Killing - assault by policeman – general denial – inconsistencies in evidence relied on - overwhelming eyewitness evidence of assaults caused by single policeman – policeman identified in ID parade and in Court during trial – guilty verdict returned.

Cases cited.
Tenaram Balbal v State (2007) SC860
David Kandakason v State (1998) SC558
State v Steven Ruben (2008) N3941
State v Kaillomo (2007) N5023
; State v Isidor Kaream (2004) N2610

Counsel:
S. Wusik, for the State
P. Sawanga, for the Defence

5^th November 2023

1. KANGWIA J: Ryan Osara was charged with one count of manslaughter pursuant to s 302 of the Criminal Code. He pleaded not guilty to the charge and a trial ensued. At the close of the case for the prosecution a no case to answer submission was denied. The Defence then called two witnesses and the accused to give evidence. This now is the decision on verdict.

2. The facts according to the statement of facts is that on 28 April 2020 that the accused with colleague policemen who were on motorised patrol in the 2mile area of Lae city drove to 7block. The police had directions to break up a crowd in the area.

3. When they approached the gathering the accused went out of the vehicle. He is alleged to have picked up a 20-litre container nearby and struck the deceased with it. Thereafter he grabbed an iron rod nearby and hit the deceased again on the back. The deceased fell and vomited. He was taken to the hospital but died.
4. The evidence for the Prosecution consists of various documents and exhibits tendered into evidence by consent. They included the ROI in Pidgin and its English translation, which contained denials. Statements of the Investigator relate to how he received the complaint and did the investigation after a coverup in the investigation by the former investigator surfaced. He further conducted a Record of Interview in which the accused denied and refused to answer question put to him. Through him statements describing photos of the crime scene, the body during autopsy and identification parade were tendered into evidence by consent. In the photos on the Identification parade three witnesses pointed the accused as the person who hit the deceased from 10 persons who were lined up. The medical report stated that the deceased died from acute loss of blood due to ruptured spleen from a blunt force trauma to the abdomen. These documents were tendered into evidence by consent.

5. Five witnesses gave evidence on oath for the prosecution. They included the investigating officer, three eyewitnesses and the son of the deceased. The totality of the witness’s evidence is not in serious contention.

6. Apart from the son of the deceased all four witnesses gave eyewitness evidence of being present when they saw a police land cruiser speed down to where they were. Upon seeing the police car everyone fled in all directions. Only the deceased and one other person remained when the police vehicle came to a stop. After the vehicle stopped the accused alighted, picked up an empty container nearby and hit the deceased. He then hit the deceased again with a metal table frame. After that the police burnt down what was left in the market area and left.

7. Only one witness out of the five gave evidence of being involved in an ID parade where he identified the accused as the same person, he saw at the crime scene.

8. The evidence for the defence consists of the accused and two other witnesses. They all gave evidence denying the accused hitting the deceased as alleged. Their evidence was that they were travelling in a covid awareness patrol when they came to where a crowd had gathered. When the crowd saw the police car, they scattered so they stopped and addressed the few people who were present. They collected the rubbish congregated by the crowd and burnt them. After the burning they left.

9. On behalf of the accused Ms Sawanga while relying on the cases of Michael Tenaram Balbal v State (2007) SC 860 and David Kandakason v State (1998) SC860 submits that the accused cannot be convicted because of inconsistencies in evidence under three categories named as identity of the accused, physical evidence of injury and death of deceased.

10. Under identity of the accused, while the evidence on record of three eyewitnesses was that the accused did not have a moustache at the time of the ID parade, witness Raza Jerry gave contradictory answers in cross examination from his sworn evidence that the accused was with a moustache at the ID parade.

11. The other inconsistency submitted is that witness Raza Jerrys evidence of standing in direct line of eyesight of the alleged offence contracted with his answer in cross examination that the two assaults were at the same location and proximity. That evidence further contradicted with the evidence of witness Joel Bare who claimed the assaults occurred 5 meters apart. The evidence was further contradicted with the evidence of witness Korai Mark who stated that the first assault with the plastic container occurred in close proximity to the alleged assault with the metal table frame.

12. Under physical evidence of injury, it is submitted that the evidence of all eyewitnesses that the deceased was struck on two occasions on his lower abdomen was inconsistent with the medical report which showed bruising consistent with blunt force trauma on the upper left abdomen. A blow to the right abdomen could not have caused the ruptured spleen on the inference that the spleen rests on the left side of the body and not left. She relies on the cases of the State v Ruben Bamatu N3941; State v Kaillomo (2007) N5023; State v Isidor Kaream N2610.

13. On the death of the deceased, it is submitted that the death of the deceased is settled, however in light of the evidence of eyewitnesses and the evidence in the medical report, it is conclusive that circumstances do not constitute wilful murder or infanticide. For the forgoing reasons the State has not proved the elements beyond any reasonable doubt.

14. For the State Mr Wusik after highlighting the evidence given by each eyewitness submits that there is sufficient evidence to establish beyond a reasonable doubt that the accused unlawfully killed John Dama. The state witnesses were credible witnesses whose evidence was supported by the medical report as to the cause of death.

15. The evidence of the Corroborator and investigator was credible and not discredited or weakened in cross examination. His evidence clarified inconsistencies at the crime scene, and identification parade.

16. On the evidence of the three State eyewitnesses, it is submitted that their demeanours were consistent with that of honest witnesses who were recalling what they witnessed from where they were standing at the crime scene and their evidence should be accepted despite minor inconsistencies as to distance at crime scene and identification at the ID parade.

17. As to the evidence of witness Sani Dama it is also submitted that even though this witness was not at the crime scene, he came out to assist his father after the assault. He observed the deceased condition and took him to the hospital. He was an honest and credible witness whose evidence was not weakened in cross examination.

18. On the evidence for the defence, it is submitted that the defence breached the rule in Brown and Dunn when it did not put its case to the State and maintained a general denial.

19. It is the further submission that their evidence should not be believed as their demeanour in the witness box clearly showed that they were not witnesses of truth. Their evidence was a rehearsal on similar material in their affidavits which was unreliable and lacking in credibility.

20. As to the evidence of the accused it is submitted that his evidence should not be believed as he tried his best not to deviate from the evidence of the first two witnesses. He nonetheless conceded during cross examination to being pointed by three persons out of 10 others at an ID parade.

21. This is a case that requires no retracted assessment of the evidence from both sides in circumstances where the evidence is at complete variance with what happened at the crime scene.

22. The prosecution witnesses gave evidence of what they saw while the defence witnesses maintained a complete denial of any assault on anyone.

23. It remains a case of who is to be believed.

24. It is undisputed that that the accused and his two witnesses were in a group of policemen on public awareness operation on the covid pandemic in the area where the deceased and the four witnesses for the State lived. The people who were gathered there fled upon seeing police driving down towards them. The accused and his colleagues gathered what was left behind by the fleeing persons and burnt them.

25. The story that differs are these. The State witnesses say they saw the accused come out of the vehicle went to where a container was, picked it up and assaulted the Deceased with it on the back. Soon after the accused picked up a metal table frame or iron frame and threw it at the deceased.

26. The further evidence is that from the two assaults, the deceased could not walk away and was assisted to his house by his son and others. The next day when the condition of the deceased did not improve, he was taken to the hospital where he eventually died.

27. The witnesses for the defence say they never saw the assaults allegedly committed by the accused. The evidence for the Defence stops here. It is not assisted in any other way in its defence.

28. The submissions of counsel are also at variance.

29. For the defence Ms Sawanga submits that there was inconsistency in the evidence of the State witnesses.

30. One relates to the evidence of State witness Raza Jerry where he stated that the accused had moustache at the time of the crime and in the ID parade when the accused was without a moustache in the ID parade. This inconsistency is insignificant in circumstances where Raza Jerry points the accused in the photo taken at the ID parade and again in the dock at trial. Razza identified the accused when he was bearded at the crime scene. When put to him in cross examination on the accused beard he maintained his earlier observation that he was with a beard.

31. The second issue the defence raises relate to the medical report. The medical report states that the cause of death related to a ruptured spleen from a blunt force trauma with further bruises to the left back area. From this evidence it is submitted that the medical finding of bruises on the left back and ruptured spleen is inconsistent with the evidence of eyewitnesses who pointed to the right back as the place where the deceased was assaulted.

32. This is also a minor inconsistency. The witnesses pointed to the back area.

33. Whether the assault was on the right or left of the back is of no significance in circumstances where there is no competing evidence of other assaults on the deceased body from which right or left side of the back may be a necessary factor for determining whether the ruptured spleen was from the one on the right or left.

34. Even then, the witnesses were not questioned whether it was the right side or left side. The question asked was for them to point to the area of the assault. All witnesses pointed to their right using their left arm. This is also a minor inconsistency in circumstances where there is no rebuttal evidence that the accused used a container and iron frame to assault the deceased. The medical report also supports the conclusion by that a blunt force was applied to the deceased left back area.

35. The unchallenged evidence from the witnesses for the State were from people at proximity of each other and to the crime scene. They have given overwhelming evidence of the accused as the only perpetrator. The accused was positively identified from 10 other policemen at the identification parade by three potential State witnesses. Apart from State witness Sani Dama all State witnesses pointed the accused as the perpetrator in Court.

36. The State witnesses did not cast blame on any other policeman from the group of policemen that went with the accused.

37. On the other hand, the evidence of the two Defence witnesses and the accused are lacking in credibility. They were not forthright as to what happened that fateful day apart from a denial that there was no assault by the accused. Their conduct is apparent from the evidence of the investigator which is that there was lack of cooperation in the investigation from the policemen who were in the company of the accused at the time of the incident. The denials and the lack of cooperation in the investigation blend strong support for the compelling inference that the Defence witnesses and the accused in unison have tried to hide the truth.

38. The only conclusion therefrom is that it was the accused and no one else who physically assaulted the deceased with a container and iron frame. The deceased died from injuries sustained thereafter. A verdict of guilty for unlawful killing pursuant to s 302 of the Criminal Code must be returned.

Verdict: Guilty.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor Lawyer for the Defence