Queen v Koiyau-Tegese [1962] PGSC 8 (16 April 1962)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

COR: OLLERENSIAN J.

THE QUEEN v KOIYAU-TEGESE

Trial at Rabaul:

9^th, 10^th, 11^th, 12^th, 14^th,
16^th April, 1962

JUDGMENT

The accused is charged under section 320 of the Criminal Code that on or about the third day of November, 1961, in the Territory of New Guinea, he unlawfully did grievous bodily harm to one Decemba Maion-Tolina.

"Grievous bodily harm" is defined in the Code to mean "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."

The accused is a single native of Sio in the Madang District, who was residing at the time in the native house of his friend, Iakombo, in Tavui No.1 Village, near Rabaul.

Decemba is a married woman, who was residing in the native house of her sister, Iaronde, situate in the same village and some 60 yards, in a straight line, from the house of Iakombo.

Each of these houses was erected on a clearing in the bush and these clearings are connected by a narrow path which runs through thick kunai grass. This path does not run in a straight line between the houses and the distance between them by the path is some 70 to 75 yards.

The clearings are separated by a belt, approximately 30 yards wide, of what has been called "bush." It is made up of kunai grass, some of it about 3" high and some much higher, banana palms and sparsely placed trees and bushes.

Decemba's husband had been away in Port Moresby for some few years and their children, so it would seem, were living with her mother in Tevui No.1 Village, at some distance from these two houses.

The accused and Decemba had formed an attachment for each other and he had commenced to build a house for their occupation on the clearing on which stood the house of Iakombo. Meanwhile she visited him at Iakombo's house and from time to time slept with him there, sometimes after he had come to her sister's house and awakened her. At the time of the relevant incident Iakombo was not residing at his house.

On the night before the occasion of the assault alleged in this trial there had been trouble between the accused and Decemba.

The Crown alleged that in the evening of Friday, November the 3^rd, 1961, just after Decemba had told him to leave Iakombo's house and go back to his mother's house, the accused violently assaulted Decemba in the vicinity of Iakombo's house, that this assault included a punch to her right eye, and punches and kicks to her body, after she had been knocked to the ground, and that, as a result of this assault, Decemba was taken to Nonga Hospital. There at 7 o'clock next morning she was found to have a "fairly fresh black eye" and she was found to be moribund, with her life in danger from a severe abdominal haemorrhage, resulting from a rupture of a vessel on the surface of her spleen, and possibly, contributed to by blood from a bruising of the back of her uterus.

Her spleen was removed and her uterus stitched. She recovered and was discharged from hospital about the 21^st of the month.

The witnesses of the Crown were Decemba; Mr. Clezy, the surgeon who examined and operated upon Decemba at Nonga Hospital; Sub-Inspector Hayes of Rabaul Police Station, who had a conversation with the accused on the 22^nd November; Decemba's sister, Iaronde, and her uncles Tomiliary and Toatar. These three, at the time of the assault, were having their evening meal, which had been prepared by Iaronde, at a fire on the clearing in front of Iaronde's house.

The defence was that Decemba had received her more serious injuries when she fell at a small drain or gutter on the clearing near and at the front of Iaronde's house, as she was pursued by the accused, who was anxious to secure her and so to prevent her carrying out a threat to commit suicide by hanging herself in the bush.

He said that she had made this threat just previously at Iakombo's house, after he had slapped her face with his open hand in such a way that the tips of his fingers reached the vicinity of her eye. I gathered that it was meant to suggest that this caused the "black eye" or bruised eye, in respect of which the surgeon said that "on the day after the admission to hospital the lids were so swollen that she was unable to open her eye."

There were other incidental suggestions in the course of the defence, such as that Decemba's spleen may have ruptured spontaneously, which I do not consider it necessary to discuss.

The witnesses for the defence were the accused and his two friends, Urban, an elderly and senior native amongst the witnesses, and Pranis, who called together on the accused at Iakombo's house and later went to Iaronde's house on the event in question.

The trial commenced on Monday the 9th instant and the addresses were concluded late in the afternoon of Saturday the 14th. I viewed the sites occupied by the houses of Iakombo and Iaronde, at the request of counsel, and in their presence and the presence of the accused.

Decemba's evidence, briefly, was to the effect that, after she had told the accused to go back to his mother's house, he punched her about the head and eyes and knocked her to the ground, and that, while she was lying on the ground, he punched and kicked her about the body and hit her wrist while she was protecting her face with her hands.

She said, further, that she managed to get to her feet, and, walking, until she saw the accused following her, and then running, she reached the clearing at the front of Iaronde's house, where she fell to the ground near where Iaronde and her uncles were sitting. The accused, who was "pretty close" to her when she fell, then grabbed her hand and dragged her into the "bush" between the two clearings. Later she was carried from the bush to her sister's house and she felt a big pain. When asked in cross-examination to demonstrate how she ran, before falling to the ground at Iaronde's house, she ran holding her hands to her stomach and when questioned about her hands she said: "I put my hands on my stomach."

In the course of cross-examination she readily admitted that she had threatened to take her life if the accused hit her any more but maintained that she said this while she was lying on the ground and not at the house of Iakombo after, as was suggested, the accused had merely slapped her face. In re-examination she repeated that she was lying on the ground when she said that the accused continued the assault after she had made the threat and she added: "During the time he was hitting me and I felt my body was in pain I said this."

In the course of cross-examination she did deny that Urban was at Iakombo's house while she was there this evening and she could not remember whether Pranis was there.

Decemba was strongly supported, to the extent to which they were witnesses of events, by Iaronde and Tomiliray, who each said they saw her running towards them, with the accused in very close pursuit, as they sat on the ground in front of Iaronde's house. She was bent over forward and held her stomach with hand. She run between them and fell to the ground on the clearing, "a clear place", a short distance from them. Iaronde said: "She fell on the flat ground, there was grass there, no stone, no object of any kind." She described the grass and said it was 3" to 4" high and was not kunai. Iaronde also said that Decemba was crying when she ran to them.

They both, that is Iaronde and Tomiliray, said that, thereupon, the accused grabbed her by the hands and dragged her into the bush between the two clearings, which would mean that she was taken in a direction back towards the clearing in which stood Iakombo's house.

A little later, and this was not disputed, Decemba was carried from the bush, where Tomiliray said she could not be "wakened," to Iaronde's house. She was carried by the accused, Toatar and Iaronde and, possibly also, Tomiliray. She spent the night at this house before she was taken in an ambulance to hospital. Iaronde said: "she didn't sleep, she was crying until the morning.".. "She was crying with pain in her stomach."

I will not refer, in any more detail than I mentioned earlier, to the evidence of Mr. Clezy, the surgeon, except to say that it strongly supported the Crown case as to an assault rather than by a fall, an assault which this witness considered had taken place within about 12 hours before her examination at 7 o'clock in the morning of the 4^th of the month. She was "moribund" and her life was in danger from a ruptured spleen before it was removed.

Although I do not attach very much importance against the accused to the statement he made to Sub-Inspector Hayes, it is significant that in it he did say that Decemba came to him and said: "What are you doing here, I roused you yesterday", and that he said to her: "Let's settle our trouble, why can't we be friends again?".

He did not suggest, according to this police officer, that Decemba had received her serious injuries when she fell at a little drain.

The main attack of the defence upon Decemba, in cross-examination and in the addresses of counsel for the accused, was based upon her failure to admit that Urban and Pranis came to Iakombo's house when she was there with the accused. She said that Urban was not there and she could not remember whether Pranis was there.

I must now examine the evidence for the defence. Briefly, the accused said in evidence that Decemba came to him at Iakombo's house and said he was like a dog and like a pig, that he slapped her cheeks, that she threatened, if he hit her any more, that she would, like the Kavieng people, hang herself in the bush, that thereafter he held on to her so that she would not escape and carry out her threat to take her life, that he was dragged by her some little distance from Iakombo's house and that he then slapped her buttocks. At this stage, while he was still holding her, his friends, Urban and Pranis came up and soon after their arrival Decemba ran away towards her sister's house and he pursued her still intent upon preventing her committing suicide. She fell down on grass about 3" to 4" high on a gutter or "very small drain" about 15' from Iaronde's house. He said that he sat down beside her, she was crying a little and moved her body and he thought she was pretending. He sat down beside her because he was still afraid that she might try to hang herself. He subsequently helped Iaronde and Toatar to carry her to Iaronde's house.

He admitted that his witness Urban asked him why he had hit Decemba and what was the cause of the trouble but said that this was at Iakombo's house before Decemba ran away.

The brief effect of the evidence of Urban and Pranis is that they went to Iakombo's house this evening when it was already or close to dark, one said it was "half dark", the other that it was "dark-finish", because Urban wanted to get some betel nuts from the accused; that the accused and Decemba were sitting close together; that they noticed no signs of conflict between them and that Decemba showed no signs of having been assaulted. Shortly after their arrival and before the matter of betel nuts had been mentioned Decemba ran away to her sister's house and the accused "running strongly" went after her. Urban said in evidence: "we were talking to him and because the meri ran away we didn't get any betel nut."

They, too, followed later when it seemed that the accused would not be returning. After they came to Iaronde's house, Urban used his torch to lead Iaronde and the others to where Decemba was lying in the "bush" with the accused beside her. Urban gave evidence that when he flashed his torch on the accused he was holding Decemba's shoulder trying to wake her up. He said to the accused: "Why did you hit this meri, is she going to get up or is she going to sleep there all the time?" The accused did not reply. This, according to Urban, was said at the site where Decemba was found before she was carried back to her sister's house. There was no suggestion in Urban's evidence that he had, as accused claimed, reproved the accused at Iakombo's house. There, according to both Urban and Pranis, all was well with Decemba.

Decemba, I thought, was an impressive witness, who survived with credit a most aggressive cross-examination, and so, too, were the other Crown witnesses and also Urban, who was called by the defence. The extreme allegations made against Decemba in respect of her evidence by Counsel for the accused in his cross-examination and opening address were not supported by the witnesses he called and not entirely by the accused. In his final address he did not repeat the phrase "a tissue of lies" and he did have the grace to volunteer that Decemba was an impressive witness.

I consider that Decemba's account of the significant events of this evening is strongly supported by the other witnesses for the Crown, by Urban, called for the defence, and by, as far as he was prepared to go, Pranis, who was also called for the defence and was in the difficult position position of being a friend of the accused and a cousin of Decemba.

I have no doubt that Decemba was violently assaulted by the accused between the time she ran away from Iakombo's house and the time she fell down outside Iaronde's house, and I accept her account that she was punched, knocked to the ground and kicked. In this assault I believe she received the injury to her eye and the more serious injuries, one of which endangered her life.

I think that the position between the accused and Decemba when Urban and Pranis came to Iakombo's house was that Decemba had made it clear to the accused that she was finished with him and he was holding her there to try and change her attitude. I think, too, that it is most probable that the arrival of Urban and Pranis presented an opportunity to Decemba to escape from the accused, who, as he himself said in evidence, was holding her until, at least, their arrival. It is abundantly clear that she wanted him to leave the locality and he told the police officer that he asked her to settle the trouble and be friends again. I think that it is probable that he was further incensed by Decemba's running away from him in the presence of his friends and that this contributed to the violence of his assault upon her when he caught-up with her, somewhere between the two houses.

I consider it to be clear, from the evidence, that she was already showing signs of the injury that ruptured her spleen, when she reached the group in front of Iaronde's house before she fell to the ground near them.

There is no support anywhere in the evidence for the accused's story that Decemba fell at a drain, nor support for the suggestions, made in cross-examination, that she may have run into a hole or tree or tipped on wood. The weight of the evidence strongly supports the allegation that she received her injuries in an assault and not from any of the accused suggested by the defence.

I think that the story of a small drain, - in fact a "very small drain" - was an after-thought of the accused, admittedly not suggestion to Urban when he reproved the accused on the night for "hitting her." I do not believe that he mentioned it to the police officer. I do not believe that the accused, at Iakombo's house and later, was restraining Decemba because he feared her suicide. I think that every probability points to the threat of suicide having been made, as Decemba said, during the assault as described by her and that the accused transposed this to the earlier time, when they were still at Iakombo's house, in a cunning attempt to explain his conduct. He did not make this explanation to Urban or to anyone else on the night nor to the police officer.

I consider, too, that the references to "'pig" and "dog" were introduced by the accused in an attempt to justify such assault as he was prepared to admit. In the light of all the evidence I would prefer to accept Decemba's denial that she used these words.

Considerable time was spent by Counsel for the defence upon the question of whether Urban and Pranis did come to Iakombo's house while the accused and Decemba were still there and much emphasis was placed by him upon their omission from Decemba's evidence. Although she denied that Urban came there she said that she could not remember whether Pranis was there.

However, in the light of all the other evidence, I cannot, as he invites me to, discard all her evidence because of the omission. After their arrival she endured, as I find beyond any reasonable doubt, a vicious assault, not in their presence, and then a night of ordeal, when she was conscious. She underwent a serious operation and was some weeks in hospital. This trial is taking place over five months after the significant events of the night, at which, as far as she was concerned, Urban and Pranis were not present. When Urban came to her leading the others with his torch it seems that she could have had no clear impression as to who were present.

I find a verdict of guilty and convict the accused of the offence as charged.