Kupok, The State v [1996] PNGLR 271 (20 May 1996)

PNG Law Reports 1996

[1996] PNGLR 271 - The State v Aling Kupok

[1996] PNGLR 271

N1427

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALING KUPOK

Lae

Jalina J

10 May 1996

13-14 May 1996

20 May 1996

CRIMINAL LAW - Evidence from witnesses other than victim’s evidence before the Court - Victim’s evidence is vital - Only victim can clearly describe exactly what he or she saw, heard and felt at time of offence - Evidence of other witnesses only confirms or corroborates the victim’s evidence.

EVIDENCE - Conflicting evidence - Evidence of victim not available before the Court.

Facts

This was a trial of an accused who was alleged to have unlawfully deprived the victim’s liberty and at which trial the victim did not give evidence. The two versions of what took place conflict with each other.

Held

Where there are two versions of the allegation given by independent witness without the vital evidence of the victim, benefit of doubt ought to be given to the accused.

Counsel

B Poiya, for the State.

P Ousi, for the accused.

20 May 1996

JALINA J: This accused was initially indicted with a count each of robbery and unlawful deprivation of the liberty of the victim Tinge Hopeteng in Lae on 4 March, 1996 to which he pleaded not guilty.

After I refused an application by the State for adjournment as I considered, inter alia, that the State had had ample opportunity to organise its witnesses after the case was listed on 18 December, 1995 for trial on 10 May, 1996, the State closed its case after calling oral evidence from only one witness namely Inspector Sam Boping. Inspector Boping was the person from whose vehicle the victim Tinge Hopeteng is alleged to have been dragged out against his will and taken to the accused’s vehicle and then driven away and assaulted as well as had the items specified in Count one stolen from him. Tinge later that night went to Inspector Boping’s house with a swollen face and bruises and reported the incident of assault and robbery.

At the close of the State’s case I upheld a submission by the defence counsel that the accused had no case to answer on the first count due to lack of evidence in regard to the robbery. I however rejected the defence counsel’s no case submission in relation to the second count and found that the accused had a case to answer in view of the evidence of the eyewitness Sam Boping that Tinge was taken forcefully from his vehicle to the accused’s vehicle. The victim Tinge did not voluntarily get into the accused’s vehicle.

The accused has given sworn evidence in his own defence and denied that he forcefully took the victim (his brother-in-law) from Inspector Boping’s vehicle to his vehicle. He said that whilst he was on a business trip to Lae from Wau someone in his vehicle spotted the victim sitting at the back of a utility (this later turned out to be Inspector Boping’s vehicle) at Kamkumung market and as his family had a domestic dispute regarding alleged disrespectful behaviour by the victim towards his sister and his father, he saw this as an opportunity to settle their differences so he went and parked his vehicle at the back of the vehicle that the victim was sitting in. The accused and his brother went and tapped the victim on his shoulder and told him to go with them to settle their differences. Three men who were in Inspector Boping’s vehicle also voluntarily went to the accused’s vehicle. This was about 6.00p.m. There was evidence given by the accused relating to the delivery of a mail of one of his colleagues in the vehicle at Tentsity but in the main he said that unknown to him, those at the back of the vehicle assaulted the victim. He realised the victim had been assaulted when he stopped the vehicle near Busu Bridge to relieve himself. While he was relieving himself the others also wanted to strip the victim in retaliation for the victim stripping his father in a public place but he stopped them.

Except for two occasions while they were driving away after the victim got into the accuseds vehicle and during which the accused and those at the back spoke their local vernacular which he did not understand. Itang Rumeong (who gave evidence on behalf of the accused) gave in essence evidence similar to the accused which was that the victim was not taken forcefully to the accused’s vehicle but went there voluntarily with the others. He saw this while he was sitting in the left front seat of the accused’s vehicle. He said that he did not realise that the victim was being assaulted while they were driving around until they stopped near Busu bridge for the accused to relieve himself.

Neither did Mr Ousi for the accused shake Inspector Boping’s evidence during cross-examination nor did Mr Poiya for the State shake the accused and Itang Rumeong’s evidence during his cross-examination of them.

I now have two directly conflicting versions of evidence before me of what may have actually happened particularly at Kamkumung market on the evening of 4th March 1996. It raises the question of whose version I should believe.

It has been submitted in the main by Mr Ousi for the accused that I should believe the defence version because it was unplanned. The accused was on official business from Wau to Lae. They met the victim at Kamkumung market by coincidence. He submitted that I have evidence of two defence witnesses whose sworn evidence have not been shaken and the evidence about three other people going with the victim from Inspector Boping’s vehicle to the accused’s vehicle clearly showing that the victim was not forced but went voluntarily. If the accused and his brother had pulled the victim from Inspector Boping’s vehicle there would have been a fight.

Mr Poiya for the State has submitted to the contrary. He says that from the fact that they picked up relatives along the way from Wau to Lae and in Lae showed that they planned to come to Lae and find the victim and solve their differences.

They were angered by the victim’s disrespectful behaviour towards the accused’s father and his sister and when they found the victim they put their plan into effect by pulling him out of Inspector Boping’s vehicle and taking him away and assaulting him. The fact that the victim was assaulted he submits, is clear from not only Inspector Boping’s evidence but also that of the accused and Itang Rumeong.

It is my opinion that except in offences of homicide where victim is the deceased and vital evidence relating to the circumstances of death come from eyewitnesses, in most other offences the victims evidence is the most vital evidence in a criminal trial since it is the victim who is best able to describe what he or she saw, heard and felt at the time of the offence. Evidence from other witnesses are called to support or corroborate the victim’s evidence. Where the victim’s evidence is not before the Court it should lead to an acquittal unless there are other evidence to convince the Court to the required standard of proof in criminal cases.

In the case before me, the evidence of the victim Tinge Hopeteng which is vital to the case is missing. With Inspector Boping saying on the one hand that Tinge was forced by the accused and his brother and the accused and Itang Rumeong saying on the other hand that Tinge went to the accused’s vehicle voluntarily, it creates doubts in my mind as to who is telling the truth in the absence of the victim’s evidence. I am inclined to give the benefit of this doubt to the accused which I do. I accordingly find him not guilty. I order that his bail moneys be refunded to him.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Warner Shand.