Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025 (2 November 2020)

SC2025

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 05 OF 2020

BETWEEN
PHILIP BOMAL
Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Makail, Koeget & Miviri, JJ
2020: 2^nd October & 2^nd November

SUPREME COURT – Appeal against conviction – Conviction of unlawful grievous bodily harm with intent – Safeness of conviction – Conflicting accounts – Which account is believable and reliable – Criminal Code – Section 315(b) & (d)

SUPREME COURT – Appeal against sentence – Excessiveness of sentence – Sentence of seven years imprisonment – Aggravating factors – Mitigating factors – Police assault and brutality – Prevalence of offence – Denial of offence –First offender – Criminal Code – Sections 19 & 315(b) & (d)

Cases Cited:
Papua New Guinea Cases

Manasseh Voeto v. The State [1978] PNGLR 119
William Norris v. The State [1979] PNGLR 605
Kali Mari v. The State (1980) SC175

Overseas Cases

Browne v. Dunn (1893) 6 R 67 (HL)
Thomas v. Van Den Yssel (1976) 14 SASR 205

Counsel:

Appellant in person
Mr. D. Mark, for Respondent

JUDGMENT

2^nd November, 2020

1. BY THE COURT: This appeal is to be decided on firstly the safeness of the conviction and secondly, the excessiveness of the sentence of a term of seven years imprisonment imposed by the National Court on a charge of Unlawful Grievous Bodily Harm with intent under Section 315(b) & (d) of the Criminal Code.

Legal Representation of Appellant

2. Although the Public Solicitor is lawyer on record for the appellant, having filed and prepared the appeal on behalf of the appellant, at the date of hearing counsel who appeared sought to vacate the hearing and adjourn the matter to another date due to what was contemplated as an application to adduce fresh evidence at some future date even though the opportunity was available to bring it to the notice of the Court at the preliminary hearings. It turned out that counsel was not prepared to argue the appeal and that counsel who originally had carriage of the matter was unavailable.

3. It would appear that this information was not brought to the notice of the appellant nor was it specifically explained to him as an inquiry by the Court revealed that the appellant was against the idea of an adjournment and indicated his willingness to argue his appeal in person. Such was the case that we allowed the appellant to prosecute and he did without considerable difficulty.

Brief Facts

4. The facts on which the trial judge relied on were that, on 4^th October 2014 at about 4:00 am the complainant stopped at Manu Auto Port Service Station to refuel. He was accompanied by four students from the University of Papua New Guinea. A white vehicle with name “Juvenile Justice” written on its sides stopped behind them and men disembarked from it including the appellant and approached the complainant and his companions. They demanded the complainant to exit his vehicle, but he refused. A struggle ensued and the complainant and his companions were forced out. A second vehicle, white Toyota Landcruiser bearing registration number BDX-413 pulled up. Uniformed policemen disembarked and converged on the complainant and his companions. They punched them and the appellant struck the complainant on his head with a butt of a gun described as an A2 rifle with serial number L117066. The complainant fell to the ground and laid unconscious. He was later taken to the hospital by by-standers to the Port Moresby General Hospital where he underwent immediate brain surgery. The State invoked Section 7 of the Criminal Code as the appellant and others acted in concert.

National Court Decision

5 The appellant denied the charge. The State called the complainant and three witnesses who gave evidence that the appellant was the assailant. The appellant gave evidence that he was not the assailant. He called two witnesses who supported his defence. The trial judge accepted the evidence of the complainant and his witnesses and held that the appellant was the assailant. He reached this conclusion based on the following reasons:

5.1. The complainant knew the appellant by sight as they were from the same locality in the Sinasina Yongumul District of Simbu Province.

5.2. None of the defence witnesses were able to identify by naming the policeman who they said assaulted the complainant.

5.3. None of the crucial aspects of the defence cases were put to the State witnesses contrary to the rule in Browne v. Dunn (1893) 6 R 67 (HL) followed in the case of Thomas v. Van Den Yssel (1976) 14 SASR 205 and Manasseh Voeto v. The State [1978] PNGLR 119.

Chief Justice Bray of the Full Court of the Supreme Court of South Australia in Thomas v. Van Den Yssel (supra) stated:

“.....if it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention must be directed to the matter by cross-examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at p.70, it is ‘absolutely essential to the proper conduct of a cause’.

I again mention, to follow once more what judges of this court have said many times, that a defence case is not assisted if the accused’s version is not put to the State witnesses in cross-examination. It should be done at the first available opportunity. Without in any way qualifying the criminal onus of proof , it may be said that, if the Court is to be persuaded that State witnesses are lying or mistaken or inaccurate in their recollection, then it is generally advisable that they should immediately be questioned to that effect and given an opportunity to explain.”

Safeness of conviction

6. The gist of the appellant’s case is that, he was not the assailant because he did not strike the complainant on his head with the butt of the gun. It was another member of the police who was present at the scene at that time.

7. He identified the following as crucial flaws in the State witnesses’ evidence which make the conviction unsafe:

• State witnesses contradicted themselves. Jopa Launa said the appellant struck the complainant on his head with the butt of a gun several times while other members of the police kicked and punched him.
  
• Another State witness named George Laikio stated in his statement to the police that an unidentified member of police picked up a brick and struck the complainant on his head. In his oral evidence in chief, this witness said that a member of police and driver of a white double-cab vehicle disembarked from the vehicle and argued with the appellant. He picked up his gun and struck the appellant on his head. The appellant fell-down and other members of the police came and booted him. Then a blue 10-seater police vehicle arrived and the driver disembarked, ran and picked up a brick and struck the complainant on his head.
  
• The last State witness Ben Koiran did not give a statement to the police but in his oral evidence in chief said that a double-cab BT-50 motor vehicle arrived and parked beside the complainant’s motor vehicle. Then a blue land-cruiser arrived and five to six people disembarked from it. One of them picked up a brick and struck the complainant on his head. He said one of these persons held a gun. He went on to say that these persons were members of the police and the persons who held the gun was the appellant.
  

8. It was his evidence which the learned trial judge erred when he did not accept that:

• When he confronted the complainant at the service station, the complainant verbally abused him.
  
• At that moment a blue 10-seater with a group of policemen from Gerehu arrived to refill.
  
• They noticed the complainant abusing him and one of the members of the police whom he does not identify by name came over to assist him.
  
• It was the complainant who assaulted the policeman by punching him on his face and he fell to the ground.
  
• When the other members of the police saw this, they disembarked from the 10-seater and converged on the complainant and assaulted him.
  
• They punched and kicked the complainant but as he was strong, he picked up a brick from a nearby flower garden and hauled it at the front windscreen of the blue 10-seater and shattered the glass.
  
• It was the driver of the blue 10-seater who disembarked and picked up the brick and struck the complainant on his head. The complainant fell-down and was unconscious.
  
• The driver’s name is Gabby Gal. Gabby Gal and the appellant rushed the complainant to the hospital to receive medical treatment.
  

9. A witness for the appellant by the name of Kevin Sniper from Kalo village of Rigo District relayed a similar account of the events to that of the appellant. It was a member of the police who assaulted the complainant by striking him on his head with a brick. It was not the appellant. However, he does not name the member of the police who assaulted the complainant.

10. Another witness for the appellant who is a reserve member of the police by the name of James Pua from Moveave in East Kerema gave a similar account of what transpired that morning. He said that an unidentified member of the police assaulted the complainant by striking him on his head with a brick. Significantly, he was unable to identify the other members of the police who were said to be from Gerehu. When asked by the trial judge if any action was taken against these members of the police, he said none.

Inconsistent and contradictory accounts

11. The evidence of Jopa Launa, George Laikio and Ben Koiran are inconsistent and contradictory in relation to whether the appellant struck the complainant on his head with a gun butt or brick. Secondly, whether the appellant was the driver or passenger of the blue 10-seater motor vehicle or double-cab motor vehicle.

12. It may well be that there were inconsistencies or contradictory accounts given by these State witnesses. However, they do not necessarily render the State’s evidence less plausible and unreliable. When the evidence is considered in totality, the following will be observed:

Recognition of Appellant

13. The State’s case goes beyond identification of the appellant as the assailant. It was a case of recognition. In his evidence, the complainant said that he was able to identify the appellant because he recognised him. He said that they were from the same locality in Sinasina Yongumul District of Simbu Province. It was the appellant who assaulted him by striking him on his head with a butt of a gun.

14. The appellant does not deny being from the same locality as the complainant and neither does he say he has not seen the complainant nor being seen by the complainant prior to the commission of the offence. Further, it may be that the complainant did not know the appellant’s name at the material time but the point is, the complainant was able to recognise him. Thus, the complainant’s evidence in relation to recognition is intact. As far as the complainant is concerned, the appellant was the person who assaulted him.

Identification of other members of police

15. Where the appellant is unable to identify the other members of the police who were allegedly involved in assaulting the complainant, it would be difficult to accept his defence that he was not the person who assaulted the complainant.

Breach of rule in Browne v. Dunn

16. Significantly, are number of material and critical aspects of the defence case were not put to the State witnesses during cross-examination in breach of the rule in Browne v. Dunn (supra). These were the defence allegations in relation to an unidentified member of police assaulting the complainant on his head with a brick after an altercation with that policeman, the appellant’s claim of not being the assailant, other members of the police from Gerehu took part in the assault of the complainant and significantly, his kind deed in helping the complainant by transporting him to the hospital to receive medical treatment after the complainant was wounded and lying unconscious on the ground. The consequence of this is, it reduces the credibility and reliability of the defence evidence. In our view, it was open to the trial judge to prefer the State witnesses’ evidence over the defence evidence on account of the failure by the defence to put its case to the State witnesses.

Record of Interview

17. Finally, but not the least, although it was not pressed by the State, we comment on the Record of Interview (ROI) of the appellant. Answers given to the police at an interview which are consistent with the evidence of an accused and witnesses has the added advantage of demonstrating to the Court that the accused is genuine and puts the prosecution case in doubt where the State’s evidence is not strong or compelling for example, where State witnesses’ evidence is inconsistent and contradictory. Equally, while an accused may exercise the right to remain silent at a police interview as conferred by the Constitution, the benefit of revealing his side of the story in his defence will not be available.

18. In this case, the appellant exercised his right to remain silent. Consequently, his recount of the events in relation to an unidentified members of police assaulting the complainant on his head with a brick after an altercation with that policeman, his claim of not being the assailant, but other members of the police from Gerehu taking part in assaulting the complainant and significantly, his kind deed in helping the complainant by transporting him to the hospital to receive medical treatment after the complainant was wounded and lying unconscious on the ground were missing or not disclosed to the police at the interview. It would appear then that the benefit that the appellant would have otherwise given to the trial judge was missing and left the trial judge with no other option but to prefer the evidence of the State witnesses.

Conclusion

19. Taking into account the totality of the evidence and the reasons given by the trial judge to prefer the evidence of the State witnesses over the evidence of the defence, we are not satisfied that the appellant has demonstrated that the conviction is either unsafe or unsatisfactory. The appeal against conviction is dismissed.

Sentence

20. As to sentence, the onus is on the appellant to establish that the trial judge made an identifiable error in his sentencing discretion which has the effect of vitiating the sentence: William Norris v. The State [1979] PNGLR 605.

21. The appellant contended that the sentence of seven years imprisonment term imposed by the trial judge is excessive. He relied on the following grounds of appeal to have the sentence quashed and replaced with a non-custody sentence and payment of compensation:

- Mitigating factors far outweighed the aggravating factors.
- The trial judge took into account factors which he ought not to have taken into account and failed to take into account factors which he ought to have taken into account.
- The trial judge failed to impose a sentence consistent with past similar or like cases where offenders pleaded not guilty and injury sustained by the complainant was much more serious and permanent in nature than the injury sustained by the complainant in this case.
- The medical evidence of the injuries of the complainant is conflicting and do not support the submission that the complainant suffered permanent injury and that a higher sentence is warranted.

22. From our perusal of the trial judge’s decision on sentence, we note that he noted the following as mitigating factors: the appellant being a first time offender, expressed remorse, willing to pay compensation to the complainant in the sum of K5,000.00, is of good character, hard-working and dedicated member of the police and has a family to support. The aggravating factors are: the complainant suffered serious head injury, another case of police beating and brutality, prevalence of the offence, it was a plea of not guilty and a trial was conducted. In Kali Mari v. The State (1980) SC175 the Supreme Court held that where a person is arrested and immediately cooperated with Police by pleading guilty this warranted a substantial mitigation.

23. Further, we note that the trial judge took into account sentences imposed by the Court in past similar or like cases which involved civilians and villagers where a guilty plea or not guilty plea was entered. Those cases also involved group attack on a sole victim with use of offensive weapons such as bush-knives and axes and the victims suffered life threatening injuries. The sentence imposed ranged from 3 years to ten years term of imprisonment.

24. We agree with the trial judge that this was another case of police beating and brutality on a civilian. The prevalence of this offence and more so, by members of the police called for a strong deterrent sentence. This is how the trial judge expressed the call for a strong deterrent sentence:

“In your case, you are a policeman and you and I we all serve in the law and justice sector. So it is like dealing with my own colleague. At the same time I do not know when policemen will stop assaulting citizens. You already heard the two lawyers telling us of previous cases where sentences up to 8 years, even 10 years have been imposed. And that is a very long time. I just wish that every policeman will say I am not going to jail over beating somebody. I tell others that if you go to jail, many of the people in jail are policemen. I hope that one day this will stop. We expect policemen to arrest people in a lawful way.”

25. Further, the trial judge observed:

“The offence committed by policemen is on the rise, it is prevalent. You will see that one of these cases I did, the lawyer referred to, I imposed 10 years on the policeman. And that is not the first time. As I said earlier, I wish that policemen will stop beating up people.”

26. Additionally, the complainant suffered serious head injury. This is confirmed by the medical report of Dr. Esther Apuahe dated 9^th March 2015. She also reported that a repeat CT scan done on 17^th November “showed no residual cerebral injury”. This is good news for the complainant. However, a further medical report by Dr. Arnold Waine of Port Moresby General Hospital dated 24^th June 2015 stated that the complainant “exhibits residual complications as a result of his previous head injuries. The residual complications include numbness of the right dorsal hand (radial aspect), numbness of angle of mouth and chin in the right face, difficulty initiating speech and sustaining speech. Francis also shows symptoms of amnesia (easily forgetful) and episodically develops headaches.” This latest medical report shows that the complainant’s head injury has impeded his brain function and speech.

27. As to the appellant’s contention that the trial judge did not give consideration to his offer to pay compensation to the complainant, we note that the trial judge rejected it. He expressed it in this way: “You have K5000 with you. You want to pay compensation but as I said to the lawyers, I do not know whether the complainant is willing to accept.”

28. In the final analysis, this type of case would attract a sentence of term of ten years imprisonment. The trial judge alluded to an earlier case of police beating and brutality where he imposed a term of ten years imprisonment on the offender. In this case, he did not impose ten years but a term of seven years imprisonment. This is three years less than the earlier case and the appellant is fortunate that the trial judge did not impose a sentence of ten years imprisonment on him.

29. We find no identifiable error in the trial judge’s decision to impose a sentence of a term of seven years imprisonment. We dismiss the appeal against sentence.

Order

30. The orders of the Court are:

1. The appeal against conviction and sentence is dismissed.

2. The conviction and sentence are confirmed.
   

________________________________________________________________
Appellant In person
Pondros Kaluwin: Lawyers for the State