Regina v Taimbari-Kesa [1966] PGSC 10 (26 August 1966)

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

Coram: Mann C.J.

REGINA v. TAIMBARI-KESA

Pt. Morestby
24^th, 25^th and 26^th August
1966

JUDGMENT

In this case the accused has been charged with an aggravated assault upon William John Shaw Graham, who was Assistant District Officer at Sogeri. The alleged assault took place in October, 1965.

Mr. Graham gave evidence to the effect that he was called to Daradae Plantation in the Sogeri area and left hurriedly. He was called there in consequence of a disturbance on the plantation, and I understand that that disturbance is to be the subject of other proceedings in this Court, with which I am not concerned. The result is that I know nothing really about the events which led up to the assault with which I am now concerned, However, Mr. Graham went out to the plantation, taking with him Police Constable BUGE and a Medical Orderly. When the party got there a European, named Craig, was lying on his back with a wound on his left knee. The Medical Orderly gave him treatment for the wound and apparently Mr. Graham went off to attend to other matters.

He left in the Landrover Police Constable BUGE, who, acting upon the instructions of somebody whose identity I do not know, went and arrested the accused and got him to sit in the Landrover awaiting Mr. Graham's return. They sat together in the back of the Landrover for a period of about one hour and then Mr. Graham returned to the Landrover and intended, at that stage, to drive back to his Patrol Post.

According to Mr. Graham, there was a group of natives from the Mount Hagen area who were very highly agitated and who were shouting and making a noise. They were some distance in front of the Landrover. In the immediate vicinity of the Landrover was a considerable group of natives from the Northern District of Papua, and it appears there was, or had been some conflict between these two groups. Mr. Graham was in the process of starting the car when he called out to the Papuan natives gathered around the car to stand clear. He says that he was concerned that he might injure them by running over their feet. They did not go, but continued to move towards the Landrover because the accused was talking to them and so, Mr. Graham says, he turned, presumably to the right, and told the accused to keep quiet. He says that he leaned forward to press the starter button and received a blow on the right side of the face.

According to Mr. Graham, the Police Constable who was in the back of the Landrover, quickly seized the accused and tried to prevent him from further violence. Mr. Graham says he left the driving seat of the vehicle and came around to the side carrying with him a rubber truncheon, which he had kept in a handy position on the front ledge of the Landrover. Whilst the accused was struggling with BUGE, it is clear from Mr. Graham's evidence that Mr. Graham approached with the truncheon and started to strike at the accused. He says that he first tried to catch him by the legs in order to overpower him, but he was then kicked by the accused with the result that Mr. Graham's glasses were pushed into his face, the nose-piece piercing the skin in the region of the eyes on both sides. This temporarily put Mr. Graham out of action and prevented him from seeing clearly, whereupon, he lashed around with the truncheon and, as Mr. Graham said, he was acting defensively rather than aggressively. He says that he was trying to keep the accused away. In the process Mr. Graham says he was kicked three more times. In fact Mr. Graham missed the accused but struck the Constable three times with the truncheon.

According to Mr. Graham's account, the accused at this stage said that he wanted to get back into the car and apparently nothing further in the way of violence occurred. Mr. Graham thought that the Mount Hagen people were very agitated and looked like attacking the men from the Northern District and so as soon as he recovered his vision sufficiently, he escorted the Hagens down a track to a boi-house.

From another passage in the evidence, it appears that before taking the Hagens to the living quarters, Mr. Graham took a pistol from the front compartment of the car. He cocked it and was evidently prepared for emergencies. Having taken the Hagens to their quarters, Mr. Graham returned to the Landrover and it emerged from his cross-examination, that he did in fact produce the revolver to the accused and he told the accused that he hoped that he would not attack him again "because I have this" indicating the pistol.

The evidence of Mr. Graham was substantially supported by Police Constable BUGE. I noticed in particular two things about Police Constable BUGE's evidence. First was that he firmly denied having seen the pistol at that stage of the proceeding and said that he was looking elsewhere. This, in spite of the fact that according to the account subsequently given by the accused, it was BUGE himself who said to Mr. Graham that he should not use the pistol.

The other thing was that BUGE denied equally firmly that he had seen Mr. Graham striking the accused on the knee with a baton from the front seat of the car. My impression is that BUGE is generally quite independent in his evidence and has tried to give accurately and dispassionately a true account of what he saw, but I have a good deal of doubt on both those questions that I have mentioned. I think it much more than likely that BUGE did see the pistol and that he did see either a blow struck at the accused for a threat to do so. I think that in both instances he is unwilling to acknowledge to himself that he saw either of these things take place. Generally I think that BUGE's account of the affair is to be preferred.

The accused himself gave evidence of what happened and here I must allow for the fact that he was also very much concerned in the conflict, very excited and, as he frankly admits himself, he is a man of hot temper who reacts very quickly when anybody attacks him. There are substantial differences in the sequence of events when the account of Mr. Graham and the account of the accused are compared. I do not think that it is very important to determine precisely and in what order these events did occur. I think each of the main parties to the action is describing what happened from his own point of view and as he saw the events taking place. There is room for confusion here. I do not think there is any reason for regarding the account given by the accused as unreliable or untrue. I think he has been quite frank and the discrepancies when the evidence is compared are no more than one would expect.

The two main events were, first the blow delivered by the accused on the right cheek of Mr. Graham whilst he was sitting in the Landrover. The accused admits he struck this blow and it is obvious he intended it to be a hard blow - which undoubtedly it was. As to this, the defence of provocation is raised.

The second incident occurred when Mr. Graham's glasses were knocked back into his face, injuring his face. On one account, as given by Mr. Graham, this was caused by a kick in the face given whilst the accused was struggling in the back of the Landrover. The actual blow which caused this trouble is not identified positively, but it is more than likely that it was caused by a punch which was delivered when the accused was standing on the ground. I think that there are further discrepancies and, after a close comparison with the evidence of BUGE, I am quite unable to reach any positive conclusion as to which account of that episode is more nearly correct. I do not think it matters.

The defence relating to the second main blow was self-defence and in other aspects the second main incident would have followed fairly naturally from the first.

Going back to the first episode. The atmosphere in and about the Landrover is of vital concern. It seems to be significant that the accused, who had been apparently concerned with the earlier outbreak of violence on the plantation, but in what way and to what extent I do not know, might well have been in a highly excited and sensitive state. He might have been particularly sensitive to any threat of aggression, and it has been suggested that he would be particularly sensitive to any aggression on the part of Europeans. This suggestion came out from the evidence of Police Constable BUGE, who said that he acted as he did and tried to restrain the accused because it was well-known that Papuans, of which the accused is one, when they fight with Europeans tend to want to kill them. I gather that this was the impression that BUGE had of the mental attitude of the accused and that this impression was gained whilst the two of them were sitting in the Landrover. They were talking for about one hour and they are "one-toks". BUGE had no difficulty with the accused whatsoever. The accused was very quiet, content to sit in the Landrover and even when BUGE, in the course of duty, got up and seized and struggled with the accused, the accused did not resent it or attempt to hurt BUGE in any way. To-day in Court he said he was not in the least resentful of this and he understood BUGE was doing his proper duty.

As far as appears Inspector Giddings had no trouble with the accused and when he took him into custody and questioned him the answers given by the accused seem to me to reflect a perfectly reasonable and quiet disposition at that time. I think it is significant that Mr. Graham did not even know who the accused was, or what he was doing in the Landrover, because he had to ask about that.

Mr. Graham had brought with him a pistol and truncheon, both of which he kept handy in the front compartment of the Land-rover. He said he always carried a pistol to plantation riots. This, I think, is an extremely dangerous and unwise thing to do, as I think Mr. Graham's subsequent conduct illustrates. The accused was sitting there quite quietly, was about to be driven off and his friends from the Northern District were gathered around the car to say good-bye to him - apparently they were aware of the position affecting the accused. As the car was about to go they tended to move forward and shake hands with the accused. Mr. Graham told them to get back and when they kept coming forward Mr. Graham became "annoyed", as he expressed it, and he spoke sharply to the accused and told him to keep quiet. He was apparently resentful of the fact that the accused was speaking to his friends on the point of leaving.

In Police Constable BUGE's evidence, the expressions used by Mr. Graham are put more bluntly. He said that Mr. Graham addressed the bystanders angrily and told them to get out. When they continued to come forward, Mr. Graham repeated this and apparently blamed the accused, who was talking to them. Thus, according to BUGE's evidence, Mr. Graham turned to the accused and said "shut up". Even on Mr. Graham's own evidence I would say his behaviour to these people was quite offensive, needlessly so, and, perhaps, dangerously so. On BUGE's evidence it was clearly provocative. What was happening in fact, I am satisfied, is that both the accused and BUGE were trying to be co-operative and were addressing the bystanders in their own language and telling them to stand back, but Mr. Graham apparently interpreted it differently.

It is important, I think, to fix the position of Mr. Graham in the car at the time he was struck. He says he was in the process of starting the Landrover, and I do not hesitate to accept this. He had turned on the ignition key already, but apparently when he was about to press the starter button he turned and looked over his right shoulder towards the accused. Had he not done this the accused could not strike Mr. Graham an the right cheek from the position in which he was sitting, because if Mr. Graham were leaning to the left and looking downwards in order to reach the starter button, his face would be turned the other way. I think it is clear that when Mr. Graham turned and shouted at the accused over his right shoulder, the accused re-acted instantly and hit him on the cheek.

One question is, had Mr. Graham at the same time and whilst turning to the right, struck the accused with the baton. I cannot find that he did, but he may well have looked as if he were in the process of doing so, and he might have done so. I cannot arrive at a positive finding that he did not. I am not satisfied beyond reasonable doubt that he did not do this. On the other hand, I am not prepared to say positively, on the conflicting evidence that he did.

The subsequent events do not have any bearing on the question of responsibility for striking Mr. Graham on the face, but hey do have a decided value as indicating the extent to which Mr. Graham's attitude and actions might fairly be described as "aggressive". I think that Mr. Graham put some of the subsequent events a little out of order, not that he is to be blamed for that. But it would appear from his version of what happened that he was struck on the glasses at a very early stage after he had left his seat in the Landrover. I am much inclined to think that this could not have happened at that stage but must have been a little later.

Mr. Graham's reaction to the blow on the face was to get out of the car immediately armed with a truncheon. He went to the side of the car first. The accused said he struck him through the side of the car and I am disposed to feel that this is right.

When the Police Constable and the accused were struggling in the back of the car, Mr. Graham went around the back of the car and tried to seize, according to his version, the legs of the accused, in order to overpower him. This brought him within kicking range of the accused. I think this was a foolish and unnecessary action to take, placing his face well within range for quite some time. Apparently during part of this time he was disabled temporarily, but instead of moving back out of the range, he pressed forward waving the truncheon blindly in the air. He was clearly very angry by this time and determined to overpower the accused in a situation in which he had not the strength to do it successfully. I think it is foolish to approach a man who is struggling for his freedom, but not injuring the Policeman in any way, and come towards him with a truncheon at the ready. I think further that it was foolish for Mr. Graham to have the pistol it to the accused. If he needed a pistol for self-defence in relation to outbreaks of violence on plantations, I can well understand that, but in that case it should be a weapon carried in a proper holster and handled safely and properly so it would be ready for instant action. Apparently both the truncheon and pistol were kept in the front compartment of the Landrover where, not only could they get into wrong hands or be lost, but they might lead to an accident. Apparently Mr. Graham had the pistol in his hand from the time he left the Land-rover to the time he returned, and was within reach of it when he shouted out to the accused. It is likely to cause aggravation of an already dangerous position to carry a firearm in that manner.

It is apparent to me that the accused has had a deep sense of injustice, which is probably quite misplaced, but nonetheless to him must have appeared real He did not react in the same way towards Mr. Giddings or to anybody else. I think that Mr. Graham is not greatly to be blamed. He was entering into a dangerous situation, or one he saw as dangerous. He went into it rather heavily armed. He must have been subject to a lot of anxiety and I think he failed to realise that the accused was likely to interpret his exercise of precaution as a form of aggression

I would not, of course, be prepared to take any different view of the facts merely to up-hold action which was taken in good faith in the exercise of lawful authority. I must look at the atmosphere, the events that took place and try to determine how the accused might reasonably interpret them.

In these circumstances I think that the first incident took place when the accused was under very considerable provocation and pressure. It was the provocation of a quick tempered man. I think he was provoked and, although a person can only rely on provocation on an objective assessment of the reactions of a reasonable man in his situation, nevertheless, the quick tempered person is not disentitled to the same defence if the degree of provocation would have satisfied the objective test. In other words, the fact that the accused did retaliate, even from an excess of hot temper, does not disentitle him to rely upon the defence if the provocation was such as to provoke a reasonable man, as well as a hot tempered man.

My final assessment of that incident is if the blow was struck and probably if the blow was threatened, (because Mr. Graham had the truncheon to hand at the time, and without striking the accused might well have threatened him). I think in either event the provocation in the circumstances prevailing would be sufficient to make it likely that a reasonable man would strike an officer with the kind of blow that was, in fact, struck. I think that if Mr. Graham did not strike the accused with the baton and did not make a gesture of threatened violence in that way, the provocation would not be sufficient to justify the blow in the sense that a reasonable man would be likely to act in the same way in the same circumstances.

This is a criminal case where I must be satisfied beyond reasonable doubt that Mr. Graham did not strike the blow, or make such a threat or gesture as would amount to practically the same thing, and I cannot be satisfied on this evidence to that degree that the defence of provocation is in that way excluded. I am far from satisfied that Mr. Graham did strike such a blow, but I think it is open to considerable doubt on both sides.

I think the other incident continued out of the first and I think from then on each party saw himself as fighting defensively. There was much confusion on both sides, and it is quite clear that it was the accused who stopped fighting first and stopped as soon as Mr. Graham was temporarily disabled. He did not renew the struggle in fact after the first blow the accused did nothing that could be regarded as aggressive. He kicked and punched at Mr. Graham whilst he could when he was able to get that much latitude, but on each occasion it was Mr. Graham who came within range. On no occasion did the accused find himself free to carry on an aggressive war.

I think that the accused is entitled to rely on the defence of self-defence in the second matter. I do think the accused has a deep seated feeling, or has had one, which is characteristic of the feeling described by Police Constable BUGE. I think that in such a situation it is a grave mistake for people to exercise authority angrily and abusively, or to press a conflict to try and win a fight.

I find the accused is entitled to be acquitted on both charges, but what I have said has no bearing on the other case which is pending.

I find the accused Not Guilty.