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State v Taia and Mesi [1983] PGNC 11; N433 (8 August 1983)

Unreported National Court Decisions

N433

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
ANDY TAIA OF TARI
AND
THOMAS MESI OF SIO

Waigani

Kaputin J
9-11 March 1983
14-15 March 1983
21-23 March 1983
5-6 April 1983
8 August 1983

JUDGMENT

KAPUTIN J: Th accused stand trial upol upon indictment that they on the 10th day of August, 1981 in Papua New Guinea unlawfully assaulted one Douglas Charles Dent and thereby did him bodily harm. The charge is laid under s.340 of the Criminal (Revised) Code, which reads:

“Assaults occasioning bodily harm

(1) A person who fnlaw allyultsaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonfor a not ding year>

(2) &#160ersop mayn may be a be a be arrestrrested wied withoutthout warrant for an offence against Subsection (1).”

Both accused are policeman, Taia is a sub-inspector and Mesi is an ordinary constable. Sub-inspector Taia was the officer-in-charge of the Gerehu Police Station at the time. They were off-duty and were attending a Kungfu training course at the Gordon Police Barracks on the night in question.

After the session, they left the Gordon Police Barracks separately. Mesi went on a taxi to go to Waigani and Taia drove an un-marked police car to return to Gerehu. Opposite the City Council Hall on the Waigani Drive, Taia noticed a 120Y Datsun ahead of him, going from side to side and in a manner as that of a drunken driver. He suspected it and immediately pursued him and the car chase began. The taxi in which Mesi was a passenger was in front of Taia at the time when he noticed the Datsun swaying from side to side. However, in the chase he took over from the taxi and pursued the car. The taxi, on instructions from Mesi, also joined the chase which proceeded up Waigani Drive then down Morata road back again to Waigani Drive and ended up at the Boroko Police Station where the alleged incident took place.

In support of its case the State called eight witnesses to give evidence. The two accused gave sworn testimonies for their respective cases. The accused Taia called one other witness in support of his own case but whose evidence if accepted could also go to help the case of Mesi. Of the two accused, Taia was reliable as a witness except that in some material aspects he was purposely evasive. As for Mesi he was deliberately evasive and never told the truth except for that part about the actual car chase. I have come to the conclusion in regard to these two witnesses respectively, on the basis of their demeanours, and from parts of their evidence that I hold to be the truth because they are consistent with the prosecution’s evidence and those that are not credible.

In regard to the witness, Dr. Misch, whose evidence was called in support of Taia, some confusion arose over the medical document (Exhibit J) which was tendered through him. It was in relation to alcohol content reading of a blood test carried out on blood taken from Dent to determine the amount of alcohol that he was alleged to have taken on the night of the incident. Another doctor was alleged to have taken the blood specimen and a technician had carried out the test on it. Dr. Misch had signed the document which appears to be a certificate, for the technician. Dr. Misch who is a pathologist at the Port Moresby General Hospital, was called as an expert witness to testify that the blood-alcohol reading of 0.16% w/v is well above what is normally be expected of a person to be driving on the road. The confusion had arisen over misunderstanding by both counsel. When Mr. Gavara-Nanu had not objected to the document being tendered he was under the impression that this doctor was the one who had carried out the test himself. However, it only became known during cross-examination, that he was not. Mr. Bruce never told Mr. Gavara and the court about this fact prior to this witness being called. Mr. Bruce sort of jumped the gun by calling expert opinion on the results without properly establishing the genuineness and reliability of the test. This is bad. If the genuineness of the test is disputed, Dr. Misch’s evidence cannot be of any probative value. Here the doctor who collected the blood sample and the technician who conducted the test were not called to verify the procedures that were followed and whether it was reliable to ensure that the sample was the correct one which was tested. These steps which were necessary to prove the genuineness and reliability of the test, were skipped. Further Dr. Misch had only come into the picture about four months ago when he first came into the country from England. This was some twelve months after the alleged test had been performed. Surely, his evidence can only be of secondary nature, which cannot establish the authenticity of the test, or the certificate for that matter. In any event, it does not follow that once the document has been admitted, rightly or wrongly, that I should automatically accept its content. The doctor was presented as an expert on blood alcohol testing with the police in England. Of course his opinion may be correct, however, the reading which he was interpreting stems from a doubtful source and therefore I could not accept it. However, there are also other aspects upon which he based his expert opinion that raised some suspicion about his expertise. He claimed he knew about how much alcohol content in a bottle of beer in Papua New Guinea from what he had tasted in drinking beer itself rather than from any scientific analysis that he may have carried out for his own studies. He stated that such scientific test is very complex. This is true, however, one would have expected that his expert opinion were based on scientific facts rather than on mere taste. Any drunk could give such opinion based on taste.

As far as the State witnesses are concerned, I would not accept most of the evidence of Dent and Agnes Bali. They are obviously not witnesses of truth. However, there are some aspects of their evidence that I would believe as the truth mainly because they are consistent with independent evidence and also because those aspects appear credible.

As for Dent, I find that he was very drunk that night not on the blood-test evidence because that was of no probative value, but on the observations by nearly all the witnesses on both sides. If he was sober the whole incident would not have happened. However, even though he was drunk he certainly knew what he was doing. He was evasive about the suggested meeting at the Label Makers as there was no such business meeting there. The meeting had in fact taken place at the Conference Room which was a kind of social drinking club. Some business matters may have been discussed. But certainly a lot of alcohol was consumed and not just two bottles as Dent had let us to believe. However, under the state of drunkeness, he would have still felt the first hit from Taia, which made him staggered against his car and fell unconscious for sometimes. He said so himself. It was only natural that while in such a state of drunkenness that when he recovered from a temporary blackout he remained under a dizzy condition which made him not knowing what was happening or could not properly recollect what was going on around him at the time until he was inside the charge room.

I believe Dent however, when he said he was hit on the face by the accused Taia at the Boroko Police Station car park; and that Taia had seen him at his home three weeks after the incident and not on the next day as Taia claimed. On the morning of the next day Dent was present at the Ela Beach Courthouse to appear in a D.U.I. charge whom he was charged with on the previous night. And if anything Taia could have seen him there as he was the informant of the case against him. Taia explained the practice that the first day was just for mention. But what would have happened if he were to plead guilty on the spot. Taia should be present as the informant in the case, and to prepare the antecedent report. Although what Taia had put forward is true to some extent, I do not accept it as the reasons for his absence at the Ela Beach Courthouse. I consider that at that stage the police had considered their position and were reluctant to proceed because of what had taken place to Dent the previous night. I also consider Taia seeing Dent at his house as unusual. It was suggested that he had gone there to apologise, however to put to Dent that he would be a witness for the assault upon him against Mesi when he himself knew that he was also involved is somewhat sinister to say the least. If Taia had done the right things within his power as a policeman in arresting Dent, why should he return to the man he had arrested and apologise to him? All these can be calculated to find favour from Dent to drop any possible charge of assault against him, which charge is now before this Court.

In regard to Agnes Bali, I would believe that part of the evidence that she saw Taia hit Dent at the car park. I base this on the grounds that from the position in the car where she was she could clearly see as she said what was going on to Dent besides their car. It was a natural instinct and inevitable as a friend of Dent to be observant as to what was happening to him. They had just ended a long car chase and the whole incident was a matter of some curiousity and she had to observe what was going on. There was no suggestion that she was blind or that she was drunk so as not to know or properly recollect what was happening. She was in fact screaming in terror when Dent was hit. It was only afterwards when her screams had alarmed everybody that another policeman came and slapped her on the face, which only made things worse for her. Anyway, she was then taken into the police station first before Dent. Nevertheless she saw Taia administered that first hit at Dent which made him reeled.

In regard to the witness, Constable Polon Koniu, he is an absolute liar. He was a passenger in Taia’s vehicle throughout the entire chase right up to the Boroko Police Station. And he must have been very close to Taia during the whole incident there. And if anyone who would know more about this incident, it would have been this witness. He knew a lot more than he was prepared to tell this court. What he told the court was a pack of lies. To illustrate the type of evasive approach that he took, at one stage in his evidence he said that he saw Taia swung his hand at somebody but he was not sure who the person was, or where Taia’s hand landed. There was no one around yet at the moment except Taia and Dent alone. And the punch that Taia made could only be at Dent. This must be that crucial hit done by Taia, yet this witness was not prepared to tell the truth about it. If he was able to see the swinging of a hand where the lighting was not so clear, I am sure he could have also seen the whole body of the man or his head where Taia’s hand landed because it would be much bigger than the hand itself.

There are two State witnesses though, that I regard as reliable and accurate in their evidence to the court. They are acting Chief Superintendent John Simon ToGuota and Sergeant Joan One Paul, a female policewoman. Both were eyewitnesses who saw what was actually taking place in this incident. Sergeant Paul was there on duty at the time while Superintendent ToGuata happened to be there on some police matters even though he was not really on duty at the time. Both accused while in the witness box and both their defence counsels never suggested that they were lying. Other evidence showed that Paul and ToGuata were in fact present at the scene of the incident. And both accused also admitted in their evidence that they saw them there at the time of the incident. It was no wonder that the defence never suggested that they were lying. Cross-examination only concentrated in suggesting to the witness that they were being mistaken in most of what they saw or were failing in accuracy of recollection. They were grilled unnecessarily especially by Mr. Bruce for a long time in a hope to destroy their evidence or credibilities but to no avail. They were adamant they could not have mistaken what they saw or failed in their recollection of what they had observed because they had actually seen the incident with their naked eyes under sufficient lighting. And that they had tried their best in their evidence for no other motives other than to assist the court as to the facts surrounding this case. In fact from their demeanours and appearances and the way they tried to relate their evidence as correctly and accurately as they could according to what they had observed of the incident, appeared to be the best witnesses to have ever testified before me. I will accept their respective evidence in entirety. In any case, the prolong questioning of these two witnesses was a waste of time.

As to the doctor who gave medical evidence on the alleged injuries received by the victim Dent, I have no doubt about his credibility.

FINDING OF FACTS

As far as the whole evidence before the court is concerned, I have considered it and I have come to the following findings of facts.

The victim Dent was drunk on the night in question. He had consumed quite a considerable amount of liquor that night. He was under the influence of liquor and was so affected by it to some extent. However, he was still in a state that he knew what he was doing. I made this finding not on the basis of blood test evidence which I have rejected but on the evidence of most of the prosecution’s witnesses.

The car chase started about 8.30 p.m. opposite the City Council Hall on the Waigani Drive towards the University. Dent was driving the white 120Y Datsun and was ahead of the taxi in which the accused Thomas Mesi was a passenger, followed by the accused Taia who was driving an unmarked police car at the time. Both Mesi and Taia had just left the Gordon Police Barracks for Gerehu after a Kungfu training session there. Taia was the assistant instructor at the training classes. He was with Constable Polon Koniu in the car at the time, while Mesi was with his taxi driver. Dent was with a girlfriend Agnes Bali in the car. Opposite the City Council Hall at the one-way double lanes, Taia noticed a 120Y Datsun which was later known to be driven by Dent, travelling in a zigzag manner along the road. Taia immediately suspected it as someone driving under the influence of liquor, and started to pursue it. Taia over-took the taxi and followed the 120Y Datsun in front of him. Just before the Waigani Supermarket turn-off, Dent realized that he was being pursued so he accelerated. He turned off at this junction down to Morata road. The car chase then commenced in high speed, which proceeded past the market and down Morata road. Taia started blinking his lights and tooting his horn to signal the 120Y Datsun to pull up but without success. All these only made Dent to accelerate further into top speed. Along the way Dent quickly turned into an in-road, turned his lights off and hid himself there and when Taia and the taxi drove past without noticing him, he drove out again onto the Morata road and went back up Waigani Supermarket again. Dent did not make a quick “U” turn as he said he did. Taia lost track of him for sometimes. His passenger Koniu looked backwards and saw the vehicle driving backward in the opposite direction and informed Taia about it. They turned back and pursued it. At one stage before they reached the Waigani junction, Taia came side by side next to Dent and was yelling for him to stop and telling him that he was a policeman, however, Dent continued. They travelled up and on to Waigani Drive again. Dent turned left and proceeded towards Boroko, immediately followed by Taia and then the taxi. As Dent himself described he was on high speed down Waigani drive towards Boroko and the car behind him (later known as driven by Taia) was behind him all the time. Taia had kept his blinking lights on all the time as the chase progressed. Taia had called all the police sector patrols for assistance but never got any response. At the Boroko traffic lights, Dent sped through the red light without stopping and Taia had to follow through also in case he lost sight of him - Dent claimed that the vehicles chasing him were rascals. Although in the National Capital District this was a greater possibility, the circumstances surrounding this case negate such assumption. This is one aspect that he told lies about. In fact he knew that the car right behind him, chasing him was a police vehicle. And he was trying to avoid it because he knew he was drunk and realised that the police had discovered it from his manner of driving, and could be charged for driving under the influence of liquor.

When Taia overtook the taxi, Mesi recognized him and then realised that he was in pursuit of the car ahead of them, so he instructed his taxi driver to assist Taia in the car chase. His intention was to help apprehend the driver of the car and to be a good witness if the suspect was caught.

When the car chase ended at the Boroko Police Station, Taia hit Dent once with the back of his palm in Kungfu technique on the face, which made Dent staggered beside his car and fence, and then fell unconscious to the ground for some-times.

At the station car park, when Taia held Dent after the car chase for questioning, Dent said to him, “Get your dirty hands off me.” This was an attempt to discredit Taia. To some, for someone to say this to a policeman would be quite provocative, as this would appear to be an attempt to lower his dignity. To Taia, as he himself said he was naturally inflamed by this. After the long car chase and with the knowledge, mistaken of in fact that Dent was deliberately running away from him, what Dent said was the last straw that broke the camel’s back. Taia snapped and hit him on the face. Taia had acted under provocation as defined by law, and available as a defence, and that the prosecution has not negatived its existence.

In regard to the second accused Thomas Mesi, he punched Dent a numbered of times just before Dent was being escorted through the footpath to the Police Station. There was no other persons involved except Mesi at this stage. These facts came out clearly from the evidence of Sgt. Paul. And that there was sufficient lighting there from the station upon which she made her observation. At the charge-room Mesi also slapped Dent twice on the face for refusing to answer questions put to him about the trouble. Apart from other evidence establishing this, Mesi himself admitted this in his evidence. I do not find any provocation under which Mesi could have acted to assault Dent. Mesi had consumed a fair amount of liquor that night, and he was simply very angry for risking his own life while in pursuit of Dent in the chase to apprehend him. And what he did to Dent was just plain stupidity.

It must be remembered that it was Sgt. Paul who had the responsibilities that night of questioning the suspect Dent about what he had just done to establish whether she could lay any charge against him. She was on duty that time and whom Taia had handed over the responsibilities to charge him. Mesi’s task was merely to write down his own statement, as is usually the case as a witness, of what he had observed. It was not for Mesi to be messing around with this suspect at the station. What he did was clearly outside the bounds of execution of his duty as a policeman.

The injuries that may have amounted to bodily harm could not be attributed to have been caused by the assault by Mesi. They could have been caused by the first hit inflicted by Taia, or while being dragged along the footpath to the station. So there is no clear evidence that they were caused by Mesi at all.

THE LAW

As far as Taia is concerned, I have found that he had in fact assaulted Dent. However, I have also found that he had acted under provocation as defined by law under the Criminal Code ss.266 and 267, which should exculpate him of the charge. Under the authority of P.L.A.R. No. 1 (1980) P.N.G.L.R. 326, provocation is available as a complete defence under the Code to an accused person on a charge of assault occasioning bodily harm. Taia therefore is not criminally responsible for the assault he had committed upon the victim who gave him provocation for the assault. It follows that he should be exonerated of this charge. I am satisfied therefore that he is not guilty as charged and acquit him accordingly, and he be discharged.

In relation to the accused Mesi, I found him to have assaulted Dent, and that he had not acted by provocation. However, there is no clear evidence that the injuries sustained by Dent which may have amounted to bodily harm were caused by Mesi. There are three elements of the charge under s.340. They are first, assault, secondly, that the assault must be proved to be unlawful and thirdly, that the assault does occasion bodily harm which is defined to mean any bodily injury which interferes with health or comfort. The third element has not been proved to be present in this charge. I therefore find the accused Mesi not guilty of the present charge. However, the evidence of course established beyond reasonable doubt that I can find him guilty of common assault: Section 335 which states that a person who unlawfully assaults another person is guilty of a misdemeanour. And I think I am allowed under s.542 and s.547 to find him guilty of that alternative and lesser charge of common assault. I am so satisfied beyond reasonable doubt that the charge of common assault under s.335 has been established by the State and I find him guilty of it and convict him accordingly.

Lawyer for the State: Public Prosecutor, L. Gavara-Nanu

Counsel: L. Gavara-Nanu

Lawyer for the Accused: Public Solicitor, A. Amet

Counsel for Accused A. Taia: C. Bruce

Counsel for Accused T. Mesi: N. Kirriwom