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State v Aquila [2004] PGLawRp 58; [2004] PNGLR 456 (19 April 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

GLEN AQUILA & DOUGLAS PINIKIDU

GOROKA: KANDAKASI J

6 - 7 & 19 April 2004

CRIMINAL Law – PRACTICE & PROCEDURE – Record of Interview of co-accused admitted into evidence for the State – Contents implicating co-accused – General rule co-accused not compellable witness – Need to be cautious – If such evidence consistent with other State witnesses' evidence it may be safe to accept and act on – Evidence Act s. 14(1).

CRIMINAL LAW – Murder – Defence raising defence of accident – Serious inconsistencies in State's evidence – State failing to satisfactorily explain – Medical report not supporting State's case but supportive of defence case – State's evidence running contrary to any logic and common sense – Sufficient doubt created in case against accused – Effect of – State failing to establish its case beyond any reasonable doubt - Benefit of doubt goes to accused – Not guilty Verdict returned – ss.24 (2) and 301 (1)(c) of Criminal Code.

Facts

The two accused pleaded not guilty to one charge of murdering Oloks Pepe (deceased), contrary to s.301 (1) (c) of the Criminal Code. The deceased sustained a knife wound injury to his right thigh, which severed his muscles and his femoral artery vein at the mid femur region. These led to bleeding eventually resulting in his death. The issue was whether the injury was accidental or deliberately caused by both accused.

Held

1. When it comes to the assessment of evidence and deciding whether to accept the testimony and evidence of a witness, logic and common sense usually play a major part. (Garitau Bonu and Rosanna Bonu v The State (1997) SC528; The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298)

2. The State failed to establish the charge against the two accused on the required standard of proof beyond any reasonable doubt as the Court is left with a lot of unanswered questions and, therefore, serious doubts on the charge against them.

Papua New Guinea cases cited

Garitau Bonu and Rosanna Bonu v The State (1997) SC528.
The State v. Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253.
The State v Edward Toude & Ors (No 1) (16/10/01) N2298.
The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.

Counsel

N. Miviri, for the State.
M. Apie'e, for the accused.

19 April 2004

Kandakasi j. Both of you pleaded not guilty to one charge of murdering a Oloks Pepe (deceased), contrary to s.301 (1) (c) of the Criminal Code. During the course of the trial, it became clear that you were raising the defence of accident. Accordingly, a number of facts are not in dispute.

The undisputed facts are these. The deceased sustained a knife wound injury to his right thigh, which severed his muscles and his femoral artery vein at the mid femur region. These led to bleeding eventually resulting in his death. Prior to the deceased sustaining the injury, he was part of a group of boys, which unsuccessfully tried to gain admission to a fundraising dance at the Bowling Club here in Goroka. This resulted in the group of boys causing some disturbances at the Bowling Club. That caused you two men to come out of the club and chase the boys away down to the big pig area, close to the Medikwae store. On your way back, the deceased had a fight with Douglas Pinikidu. In the course of the fight, the deceased sustained the injury to his right thigh. After he sustained the injury, the two of you took him to the Goroka Police Station and had him locked up in the cells. There he bled to death a few hours later.

There is also no dispute that the incident took place on 10 March 2002 at about 2:00am. The deceased and his friends were initially at the Sports Club where there was a dance that ended at 2:00am. They then went to the Bowling Club hoping to get in. By the time they arrived at the Bowling Club, there were no more admission after closing at 1:00am.
The State contends that the two of you deliberately stabbed the deceased with intent to cause him grievous bodily harm after taking out a knife the deceased had with him at the time. You two claim on the other hand that it was an accident, in which the deceased got himself injured by his own knife in the course of a struggle between him and Douglas Pinikidu. The trial was therefore on the question of whether the injury to the deceased thigh was accidental or deliberately caused by you two.

The State called three witnesses, Jogi Gomai, Malkom Akepa and first constable, William Limang. The first two witnesses were with the deceased while the third was a police officer who was on duty at the Goroka Police Station who received and locked the deceased in the police cells after the injury to his right thigh.

The evidence of the first two witnesses is similar but has some inconsistencies, which I consider are serious. The notable inconsistencies are firstly, the first witness said, from the Sports Club, he and 6 others namely, the deceased, Malkom Akepa (second witness) Skin Diwai Kella, Isaac Ilailo, a David, (surname unknown) and another person, whose name he was not able to recall, went to the Bowling Club. Later the witness increased the number of persons he was with in answer to a question from the Court. He added the names, Robin and Tonton. He also changed an earlier story of all being sober to one of Isaac, Robin and Tonton being drunk at the time.

The second witness said seven men or boys left the Sports Club and went to the Bowling Club. These were himself, Jogi Goma (first witness), Skin Kelly, David Goul, Tom Tonton, Isaac Ilailo and Robinson Gomai, first witness' brother. He also said the deceased did not go with them.

The second notable area of inconsistency is in relation to the names of the three of their group members who went into the Bowling Club. The first witness said Isaac and two others whom he was not sure about went into the club. However, the second witness, said the three who went inside the club were, Isaac, Tonton and Robin, the first witness' brother. How was it that, the first witness was not able to identify his own brother as one of the three that went into the club?

The final and more important inconsistency is where the first witness says Douglas Pinikidu took a knife the deceased had in his side trouser pocket and stabbed him twice. The first stabbing was on the left hand as the deceased tried to block your attack on him. The second stabbing was on the right thigh of the deceased after he had fallen down on the ground (tar) and was on the ground. The second witness said however, one of you stabbed the deceased on his right thigh whilst he was standing on his feet. Then after the stabbing on his thigh, he fell down on the ground. He maintained his evidence despite, your lawyer putting to the witness, the first witness' evidence.

There are also other inconsistencies when we examined the whole of the State's evidence as one. The most significant one is where the oral testimonies of the first and second witnesses speak of two stabbings whilst the medical report speaks of only one stab wound. That wound is to the right thigh and makes no mention of any injury or wound to the left hand. The oral testimony says the deceased sustained the first stabbing to his left hand. This evidence clearly states that the knife was seen entering the deceased hand or flesh.

These inconsistencies give rise to a number of questions. Firstly, did the first two witnesses go together from the Sports Club to the Bowling Club at 2:00am on the date of the incident? Did the witnesses actually witness the fight between the deceased and you two men? If the answers to these are in the affirmative then, the next question is, how is possible for them to give different accounts not only on the critical question for trial but also the number of them getting to Bowling Club from Sports Club and others? Could they have been mistaken? If so, do they say that and what is their explanation for that?
We can quickly dismiss the possibility of the witnesses making a mistake without more for two reasons. Firstly, the witnesses said they were not mistaken. Secondly, the State has not identified any evidence that suggests that the witnesses were mistaken.
This leaves us to consider the remaining questions. I am of the view that if the witnesses went together and witnessed the attack on the deceased, there should be no such inconsistencies, unless they are talking about two different events in the areas where there exist these inconsistencies. Nevertheless, the witnesses claimed they were talking about the same incidents, so the proviso to the above is not the case. Hence, what is the explanation for these inconsistencies? Counsel for the State ably tried to draw the Court's attention to your respective records of interview, in particular that of Glen Aquila, where he appears to say that Douglas stabbed the deceased on his thigh.

There are three significant difficulties with that. Firstly, this is a statement by one accomplish or co-accused against another. In The State v Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253, I discussed the principles governing the treatment of such evidence in these terms:

"In relation to a co-accused or an accomplice's evidence, the law is well settled. As O'Loghlen AJ said in Regina v. Simbene Dandemb [1969-70] PNGLR 207 at page 212:

'The general rule of law is that an accused person is not a competent witness for the prosecution in any criminal case and there is a further rule that one co-prisoner cannot be called by the prosecution to give evidence against another.'

The position at common law is that caution must be exercised before acting on the evidence of a co-accused or accomplice. This is because as Frost CJ said in The State v Nataemo Wanu [1977] PNGLR 152 at page 157:

'The usual justification for the requirement of caution in such a case is the 'danger that the accomplice will minimize his role in the crime and exaggerate that of the accused'. Cross on Evidence (Australian ed.), p. 211. The learned author also refers to McNee v. Kay ... in which Sholl J. of the Victorian Supreme Court refers, in such cases, to the 'temptation to exaggerate or make false accusations'. An accomplice may do so in order to curry favour with the prosecution. ... I should add that because the rule goes much further and requires proof of corroboration, it goes beyond the caution with which a legal tribunal regards the testimony of a witness who has been convicted of or confesses implication in a serious crime.'

This is why, s.14(1) of the Evidence Act (Ch.48) and the general rule as noted above, prohibits the calling of a co-accused or a person charged with the same offence as a witness in the trial of another person for the same offence."

Given this, the Court has to be extremely cautious in accepting and acting on the evidence of Glen Aquila. I would feel safe to act on this evidence if his evidence was consistent with the rest of the State's evidence. This leads to the next difficultly.

Before looking at what you two have said in your defence, the Court must be first clear on what the State's witnesses are saying. This is because as I said in a number of cases already, as in The State v Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365:

"It is settled law that the defence cannot establish the prosecution's case. That means the prosecution must first establish a prima facie case against an accused person. That includes an obligation to negative any defence that may be raised by the defence. Once the prosecution has established a prima facie case, only then can the defence be called upon to answer it: R v. Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266. It follows therefore in my view that if the defence has gone into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I believe this is the consequence of the Constitutional guarantee of presumption of innocence until proven guilty."

In your case, it is slightly different in that the record of interview between the police and Glen Aquila, is part of the State's evidence admitted with your consent. Therefore, that piece of evidence is part of the State's case. Accordingly, a consideration of the State's cases includes a consideration of this particular evidence. This does not mean that the Court must ignore the dictates of the law as noted earlier, particularly the fact that the defence cannot be called nor can an accused be compelled to testify for the State against himself or his co-accused. Coupled with that and the burden the State has, I am of the view that a statement by one co-accused against another in a record of interview can only be accepted and acted upon if it is consistent with the rest of the State's evidence, which is not the case here.

The third and final difficulty lies with what we can make out of relevant questions and answers in the relevant record of interview. Counsel referred to questions and answers 34, 35, 41, 42 and 43. These questions and answers are in the following terms from the English version:

"Q34. You said Douglas removed the kitchen knife from the decease. Did he do anything to the body of the deceased?

Ans: That I wouldn't know, Both fell to the ground for a long time and I only lifted him up from the back of his jean trousers, pushed him and told him to walk to the Police station.

Q35. Police report states that the Deceased had knife wounds to his left hand and right thigh. Can you tell me how he had received those injuries?

Ans: He received those injuries after Douglas had removed the knife from the his (Deceased) hands.

....

Q41. I put to you that the this knife wounds the deceased received was Douglas Pinikidu's doing. Is that correct?

Ans: Yes That's Douglas doing.

Q42. If I show you this knife, Would you be able to Identify this knife as the one Douglas used to stab the deceased with?

Ans. Yes. EXHIBIT SHOWN TO THE ACCUSED.

Q43. Is this the knife Douglas used to stab the deceased?

Ans. Yes."

The early question and answers clearly states that the interviewee did not know how the deceased sustained the knife wound injuries. Later, the interviewer suggested that Douglas stabbed the deceased and the interviewee answered in the affirmative. The interviewer then showed the interviewee the knife and eventually asked if that was the knife used by Douglas and the interviewee answered that question in the affirmative. Not a single question was put to the interview as to whether stabbing was deliberate or accidental especially when the interviewee did not know how the deceased sustained the injuries. He was not even asked how Douglas could have stabbed the deceased.

In these circumstances the record of interview does not support the State's allegation of a deliberate stabbing with intent to cause grievous bodily harm. Hence, I find the record of interview between the police and Glen Aquila is of no assistance to the issue at hand.

Apart from the inconsistencies between the first and second State witnesses' evidence, there are further inconsistencies when the evidence of these witnesses' are contrasted with the medical report. The first and most obvious one is in the number of wounds found on the deceased body. The witnesses said you stabbed the deceased twice. The first was on his left hand. The question and answer on this aspect was very specific. The relevant question was did they see the knife come into contact and enter that part of the deceased body and the answer was in the affirmative.

The medical report does not make any mention of any injury to the left hand. This report is the only independent evidence in this case. Therefore, if there was in fact an injury to the left hand as the witnesses claim, the medical report should confirm but it does not. It only speaks of a wound to the right thigh. Constable Limang's evidence, where he says nothing about injuries to the deceased hand confirms this.

The next area of inconsistency is in the description of the wound of injury it reports on. The report states:

"Right Thigh – 2cm wide wound in the inner aspect of the thigh and exiting on the posterior aspect above the knee joint.

The incision has severed muscles and the femoral artery vein at the mid femur region."

I make a number of observations. Firstly, if the deceased was standing as the second witness says, then Douglas Pinikidu had to bend down to effect the stabbing given his height which I estimate to be about 1.7 and just a little under 2 meters. Secondly, even in that case, the left leg had to give way in one way or another before the knife could enter the inner aspect of the right thigh. There is uncertainty as to whether the knife penetrated and exited straight across or went in a downward diagonal line. Neither the oral evidence nor any other evidence before this Court sheds any light on this.

Thirdly, if the deceased was down on the ground at the time of his stabbing, it is not clear how the deceased could have sustained the injuries in the way described by the medical report. If the deceased was on the ground with his face and stomach down, the stabbing would have been from the back of his thigh exiting into the front of his leg. If however, the deceased was on the ground on his back and facing up, the stabbing could have been with an entry from the front and exiting at the back of the thigh. Alternatively, if the deceased was on the ground on his left side with the right leg and side up, he would have sustained the stabbing from the outer part of his thigh exiting on the inner part of his right thigh but that is not what happened. On the other hand, if the deceased was on the ground on his right side then what happened to the left leg to enable the deceased to sustain a stabbing to his right thigh from the inner part exiting above the knee. Again, in all of these scenario's the medical report is of no assistance as to whether the entry and exiting of the knife was straight or diagonal. Further, the two eyewitnesses are silent on how the deceased landed, how he was on the ground, how and what position he and his attackers were at, at the time of his stabbing.

Further, the medical report does not give any indication of the height of the deceased. None of the witnesses' evidence provides any assistance on this aspect. On the other hand, as I already noted, Douglas, who is the person who allegedly did the stabbing, is a tall man between 1.7 meters to a little less than 2 meters. Therefore, questions arise as to whether he stood and stabbed the deceased or bent down and did that in a downward motion or did that while lying on the ground and stabbed the decease in an upward or side way or across motion.

It was incumbent on the State to call the doctor to assist in finding some answers to these questions, but it did not do that. This Court dismissed many cases in the past where the State has failed to call key witnesses having the effect of leaving many questions on the guilt of an accused unanswered. One of the latest examples of this is my decision in The State v Ben Noel & Ors [2001] PGNC17; N2253.

In that case, amongst others, the State failed to call evidence or a witness to tell what happened to the deceased after an assault on him at a club here in Goroka and found dead some hours later in his home well away from his place of attack. There was the possibility of an intervening cause leading to his death in the absence of answers to questions such as, did the wife accept her husband getting drunk and staying away the whole night? Could he have been attacked or further injured in some other way whilst on his way home? Why did he not go to the hospital or report the attack on him to the police, which were on his way home from the place of his attack? Could he have and how did he walk home?

In the present case, the factual settings are distinguishable from that case. However, the present case is similar to that case in that the State did not call the witness it should have, thereby leaving a number of critical questions unanswered. No amount of inferences or assumptions can possibly answer these questions, because the primary facts from which any reasonable inference could be drawn are not there and in any case the evidence produced in Court are inconsistent on the main issue for trial.

The above inconsistencies and unanswered questions raise questions over the credibility of the State's witnesses and their evidence. This is not restricted to the inconsistencies only. There are other aspects of the State's evidence, which also raise doubts on the credibility of the State's case.

The first aspect I note in this regard is that the first and second State witnesses' said you chased them all the way down to the big pig. The first witness said he and the second witness stopped there for a while and then returned to the Bowling Club area and hid behind a tree. If that is correct then it is reasonable to infer that it would have taken some time before they returned to the Bowling Club area and witness the fight between you two men and the deceased. It is therefore possible that these witnesses could have come to the scene as you were pulling the deceased up and taking him to the police station. This is why, in my view, the first witness, Jogi Gomai said under cross-examination that he was not sure and that other witnesses will speak on it when the entirety of the defence case was put to him. Yet the witnesses was prepared to maintain his claim that he witnessed the fight between the deceased and you two men and saw Douglas Pinikidu taking a knife from the deceased and deliberately stabbing him twice, one on the deceased left hand the other on the deceased right thigh.

The next aspect is the admission of three of the witnesses' members into the Bowling Club. These men including the first witness' brother were drunkards. The witnesses and those not admitted were sober. The question is how was it that the drunkards managed to get into the Club and not the sober ones. If indeed it is true that the first witness wanted to get into the Club to get his brother to give him K10.00 as he claims for his gate fee, what prevented him from asking him to give him the money before he went in?
Another aspect is in the area of the reason for the attack on the deceased. Neither of the eyewitnesses gave any evidence in relation to this. Their evidence is otherwise clear that the deceased caused no trouble or nuisance at or near the club. Jogi Gomai and the others persisted to get into the Club but there is no evidence of the deceased doing anything like that. So why and how was he attacked by the two of you at the first place. If indeed the eyewitnesses saw everything as they claim then, they could have covered this in their evidence but they have not.

In my view, the State's case is not entirely logical and in touch with commonsense. When it comes to the assessment of evidence and deciding whether to accept the testimony and evidence of a witness, logic and commonsense usually play a major part. A clear application of this principle is the Supreme Court judgement in Garitau Bonu and Rosanna Bonu v The State (1997) SC528. I note that my colleagues and I have followed and applied this approach in a large number of cases such as that of my judgement in The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298.

Taking all of the above into account, I am not convinced as to the credibility of the State's witnesses and their evidence. Instead, because of the inconsistencies and the illogical and or out of commonsense accounts, I am left with a serious doubt as to whether both or either of you deliberately stabbed the deceased with intent to cause grievous bodily harm, which eventually led to his death.

The facts particularly, the medical report coupled with your respective sworn testimony and statement from the dock, suggest an accidental injury inflicted upon the deceased by his own knife. This was an almost self-sought and inflicted injury and eventual death on the part of the deceased with the assistance of his friends and you two men. If the deceased was home sleeping instead of moving from one club to another causing nuisance and or disturbances very late into the night with his friends, some of whom were drunk, running into the early hours of the next morning, he could not have gotten into the fight with the two of you and met his accidental death.

In all of the circumstances, I remain unconvinced that the State established the charge against the two of you on the required standard of proof beyond any reasonable doubt as the Court is left with a lot of unanswered questions and therefore serious doubts on the charge against you. When that turns out to be the case in a criminal case, the benefit of the doubt always goes to an accused and that is the consequence that must, follow in your case. Accordingly, I return a verdict of not guilty in favour of both of you. Then consequential on that, I order a dismissal of the charge against both of you and order that both of you be discharged and acquitted forthwith on the charge of murder under s.301 (1) (c) of the Criminal Code. Further, I order that Glen Aquila's bail moneys be refunded on the provision of the relevant receipt.

Lawyers for the State: Public Prosecutor.
Lawyers for the accused: Public Solicitor.