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State v Martin [1989] PGNC 10; N742 (29 June 1989)

Unreported National Court Decisions

N742

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
MICHAEL RAYMOND MARTIN
AND
ANDREW GIRAU

Waigani

Sheehan J
29 June 1989

Counsel:

M. Unagui for the State

K. Karingu for the Accused

SHEEHAN J: Both accused are charged ls follows:

First Count:

Attempted Murder Contrary to S.304 C.P.C.

Michael Raymond Martin of Hanuabada in the National Capital District and Andrew Girau of Taroro in the Central Province are charged that they the said Michael Raymond Martin and the said Andrew Girau on the 10th day of September 1988 in Papua New Guinea attempted unlawfully to kill one Thomas Edwin Barnett.

Second Count:

Grievous Bodily Harm contrary to S.319 CPC.

And further or in the alternative they the said Michael Raymond Martin and the said Andrew Girau on the 10th day of September 1988 in Papua New Guinea did unlawfully grievous bodily harm to Thomas Edwin Barnett.”

The prosecution case is that on the night of 10th September 1988 Mr Justice Barnett a Judge of the Supreme and National Courts of Papua New Guinea was driving his car to the house of relatives in Gebose Street Korobosea. He was accompanied by his wife. At about 10.30pm they pulled up at the locked gates of the relatives’ house. As they sat in the car and Barnett, J sounded his horn to attract attention for the gate to be unlocked, a utility with a group of men on it stopped at the rear of their parked car. Men jumped off the utility and proceeded to attack the car. The front windscreen of their car was smashed and both the driver and passengers’ doors pulled open. Those attacking the car then tried to pull Mr Justice Barnett and his wife from the car and both were assaulted. Mr Justice Barnett received what have been described as stab wounds to the chest neck. and thigh.

The medical evidence which is admitted by consent describes the chest wound as “life threatening by itself and could well have been fatal without resuscitation and operation (i.e surgery). Wounds to buttock and thigh were described as not being life threatening in themselves though without prompt surgery the results could well have been crippling.

The shattering of glass and calls for help drew the attention of others in the neighbourhood. When these persons came to the scene the attackers abandoned their assault on the car and its passengers, the utility driving off leaving some of the attackers to make good their escape on foot.

It is the prosecutions contention that the first accused Michael Raymond Martin was the driver of the utility therefore a contributing party to the offence. The second accused Andrew Girau was said to be one of the men directly involved in the attack

The only evidence offered against Andrew Girau the second accused was a statement made to the Police but ruled inadmissable against him. The State offering no further evidence against him he was acquitted.

The trial therefore continued against the first accused Michael Raymond Martin only.

The evidence of Mr Justice Barnett and his wife Mrs Lila Barnett was not contested and was in fact admitted by consent. In his statement Mr Justice Barnett tells how he drove his car, a white mazda ZGK 566 to the flat in Korobosea. His wife was with him.

The Court visited the scene and familiarized itself with the surrounds of the flat and intersection of Geboso and Doreen Streets. Lot 1 Sec 85 is situated on the west side of Gebose St. It is one house from the intersection of that Street with Doreen St. A distance of some 30 metres. Mr Justice Barnett says that he did not notice anyone following his motor vehicle but that:

“as soon as I pulled in the driveway of the flat with the car pointing towards the padlock gate I noticed three or four men rushing at the driver’s door from the right. Others were running to the front passengers’ door. The engine was still running and I hurried to lock the door and put the automatic shift lever into reverse. I saw a tall man with a rock and he smashed the driver’s door window and the door was yanked open. What seemed to be a smaller man was crouched in the doorway jabbing at me with something and the tall man was behind him. There were one or two others also. As I tried to fend them I heard Lila scream and felt her being pulled away from me and I tried to reach for her with both arms and pulled her back. I was still being attacked from the right hand side and saw blood on my right leg”.

The Judge said he then broke clear of the car and ran down the street some 10 metres and realizing his wife was still in need of assistance he ran back towards the car. He was attacked again by several men. He fell under this renewed attack and when he was able to get up he found himself alone. He then said that:

“I saw car headlights flash on. The car seemed to be on the road up the hill a bit on the other side of the Government mazda. The car started moving fast down the hill past the rear of the mazda. As I moved to get off the road the lights made a fast turn towards me and I jumped clear as the car sped past me”.

He then noticed three others were trying to start his car but abandoned it when he moved towards the car believing that his wife was still inside. Seeing that his wife was in fact not in his car he ran past the vehicle towards the intersection calling for help. Three men then in the judges car got out and followed him. They were seen to be pursuing Mr Justice Barnett by John Darius and Akuila Tokau who were coming from the flat on Doreen Street to see what was going on.

As Darius and Tokau ran to Mr Justice Barnett’s aid those pursuing him ran off. The Judge was then taken to the Boroko Police Station because he wished to report that he believed that his wife had been taken off in the utility. In fact after the initial attack on Judge Barnett she had momentarily found herself alone and went to look for assistance.

In her evidence she said that their car pulled up the gates of her relatives’ flat she heard footsteps and:

“turned back and saw men all rushing towards my husband’s side. I knew we were in very great danger.

Before the first stone hit the window screen on my husband’s side - i.e before that actually got to him, in that split second I turned and saw them (I heard them utter the words kilim em dai) and at the same the windscreen on the my husband’s side smashed onto our faces and they were all over us....”.

Her own door was pulled open she screamed loudly for help as men tried to pull her from the car. Her husband pulled her back but then was himself pulled from the car or left the car and she saw the men were which attacking her joint forces with the others. She said that she saw her husband:

“surrounded by about eight or ten men and struggling for his life. They were all at him”.

Left alone she was then able to leave the car and escape into the flat property looking for help.

John Darius gave evidence that that night he was with relatives at a flat situated on Doreen Street and which overlooks intersection of that street with Gebosi Street. They had just arrived at the flat when they heard the noise of breaking glass and screams. With Akuila Tokau he walked down to the intersection to see what was happening. They saw the white Mazda parked facing the gates of the flat and saw the Judge coming towards them followed by three men. When those men saw them, Tokau and Darius they took off running. At about the same time a utility parked by the white mazda drove off with several men on the back of it.

John Darius said that when they heard the sound of breaking glass and screaming they walked slowly to see what was happening. As they got to the centre of Doreen Street - Gebosi Street intersection they saw the person they learnt to be Justice Barnett coming towards them. They didn’t see his wife at that time. Three men that were following the Judge ran off when they spotted Darius and his companion and just before they came up to the Judge, Darius said he saw a group of men climbing onto the utility and the utility moving off. Akuila Tokau gave similar evidence saying that they had just arrived at the flat in Doreen Street and were standing at the roadside when they noticed a white Mazda car coming along Doreen Street signalling a left turn, and then making that turn down into what we note to be Gebose Street. He said:

“a minute later a white utility came and parked at the rear of that car”

and about seven men got off and attacked the two persons in the white mazda. He also said he heard 2 of the attackers call out “kill him, kill him”.

Police officers gave evidence of their investigation into this attack and stated that on information received they had gone to a farm at Nazarette to enquire about a Datsun 1500 utility and to interview Michael Raymond Martin. At the farm they met a youth who told him that the person they were looking for was not there, that he was in town and could be located later.

In fact the youth who told them this was Michael Raymond Martin himself, the accused who subsequently made a statement to the police which was admitted by consent.

There he states that though he had been driving his father’s utility that night and did see the attack on Mr Justice Barnett this occured while he was transporting a friend and acquaintance Paul Koito (and a group of boys whose names he did not know) from the house of his cousin Michael Awai to Korobosea. He said that:

“from the house I saw Paul Kwito and David I don’t know his other name coming to the yard so I came down and they told me that some more guys are waiting at Gordons Market. I drove to Gordons Market where their friends were waiting and they hopped on and I was on my way taking them down to Korobosea and then to Badili. On the way to Korobosea I was taking the Hubert Murray Highway and turned left opposite the YWCA hostel heading towards Korobosea, following Korobosea way I turned left again went down and saw a car with its brake lights were still on parked on my left side and Paul Koito ordered me to stop so I stopped and those boys who were with me rushed out of the car and rushed to the vehicle which was parked on my left. I was surprised and saw them smashed the window of the car and they opened the drivers door and pulled the driver out. So the driver of the car was struggling with those boys and he struggled free and I saw him running down the street. There was a female standing on the bonnet of that vehicle. I saw that person coming running back to his vehicle so from there I took off. The three boys who saw me taking off ran after me and jumped in my car. I dropped these three boys at 4 mile and went straight to Erima and slept there.”

The last of the prosecution witnesses was Michael Awai a surveyor living at Gordons. He gave evidence that he is the cousin of the accused. He said that on the night of 10th September he had returned home after a day in his garden and following a meal had gone to bed at around 9.00pm. It was his evidence that he did not see the accused that night at all.

DEFENCE CASE:

The accused elected to give evidence and told the Court that on the night of 10th September 1988 learning that his cousin Michael Awai wished to borrow the family utility the next day he drove down to Gordons to see him. This was about 8.00pm or thereabouts. He talked to his cousin Michael for approximately an hour and they had a few beers together. At about 9.00pm “an old friend was in need of transport, saw my motor vehicle parked outside and called me for a lift to Korobosea, 2 mile. This was Paul Koito. Since there was no public transport available the accused agreed to take him and drive him with his other mates straight down to Korobosea. There he was ordered to stop by Paul and Paul and his mates got off the car and rushed to the car on the side of the road and attacked it. He heard the sound of glass smashing and saw them attacking a “white man”. He said “I was surprised and frightened so I just drove off leaving them all behind. I drove back to Nazarette where I reside that’s all”.

He did not report what he saw to the Police because he was afraid he would be attacked by the rascals.

There is no challenge therefore to the prosecution contention that the accused was present during the attack on Mr Justice Barnett, or that he did in fact drive the motor vehicle carrying the attackers to the scene in Geboso Street. But the accused says that he had no knowledge of the intended attack, he was simply an innocent bystander and took no part in that attack. Too frightened to give assistance to the Judge, he simply left the scene.

The defence put forward by the accused then is that his presence at the attack was in fact accidental. He had no knowledge that any attack was going to be made.

In law, if man is merely present when an offence is committed but takes no part in it, and does not act in concert with those who do commit it, then he is not guilty of the offence himself either as a principal or one aiding and abetting simply because he does not try to prevent the offence or notify the police.

In this case there is no evidence offered by the prosecution that indicates that the accused actually left the motor vehicle and struck any blows on Mr Justice Barnett. The only evidence is that he drove the vehicle to the scene and remained in it throughout the attack. But whether the accused struck any blows or not the prosecution contends that he was nonetheless a principle offender by virtue of the provisions of S 7(1) of the Criminal Code. That is, his presence at the attack was wilful and he not only aided and assisted in the commission of the offence but had the full intention to participate.

To establish a charge of attempted murder the Prosecution must prove beyond reasonable doubt:-

(1) ҈& that that the actu actual purpose of the attack was to kill Mr Justice Barnett; that the accused knew of this intention an a wi participant in this purpose.

(2) &#160 intentntention, ion, ion, to kill was put into execution by a means adapted to its fulfilment and

(3) & The inte intention to kill was manifested by an overt act

Ttenti kill is an s an essenessential tial element of attempted murder. Without that specific element proved a prosecution must fail. As well where tis moan onolved ived in an n an attacattack it must also be shown that the specific intention to kill was that of all attackers - not just the act of one or more who went beyond some other common purpose.

In this case it is not necessary for the prosecution to prove that the accused actually himself struck any blows on Mr Justice Barnett. If he drove them there for the joint purpose of killing he would be guilty of aiding and abetting the offence as a principle. The prosecution says the attack on the car occupants was the means used and the stabbing shows obvious intention to kill.

The evidence is that in the attack on the Judge he received life threatening stab wounds. There is evidence too that persons in the attacking party called out “kill him” or words to that effect. As well the the stab wound to the chest could also be an overt indication of an intention to kill. Together these elements would be cogent evidence of an attempted murder by the person or persons who actually inflicted those wounds.

However where the evidence suggests that some 6 or 8 attackers took part in an attack and only one used a knife to stab the victim, it is more difficult to conclude that it was common intention of all to kill. There is no evidence before the Court to suggest that the attackers held the judge to allow one of their number to stab him. The calls to kill were not made by all; there was no evidence of any injury to Mr Justice Barnett other than the serious stab wounds so that it would appear that for an attempt to kill most of the attackers were not very well armed to carry out such a purpose.

The swerving of the utility at the judge as it left the scene might be seen as an attempt to kill, but with such an act ocurring at the end of an assault - when escape was plainly the intention I cannot see this act as other than equivocal.

The whole of the evidence suggests the attack was made on the car as a result of a sudden sighting of a possible victim, rather than a planned attack on the life of Judge Barnett. But a conclusion that there was an intention to kill just anyone they happened on, is also not reasonable.

Taking all these matters into account I am not satisfied beyond reasonable doubt that the attack was made with an intention to kill either Mr Justice Barnett or anyone in the car.

There can however be no doubt that an unlawful attack was made on Mr Justice Barnetts car that night and grievous bodily harm was done to him. I am satisfied that all who took part in that attack are equally guilty of the offence of causing grievous bodily harm whether one of those taking part had the separate intention to kill or to inflict grievous bodily harm. Those taking part in the unlawful assault are nonetheless guilty under S319 because this offence is largely defined by its result. Grievous harm was done to Mr Justice Barnett in the course of an unlawful assault on him and his wife.

It was submitted by Defence counsel that once a finding of not guilty is reached on the attempted murder charge, it is open to the accused to plead autrefois acquit on the charge of grievous bodily harm under s 319. This is not so.

In the first place objection to the charge should have been made at the outset. Secondly, it is open to the prosecution to lay an alternative lesser charge within the scope of the major charge and for a Court to convict on that lesser charge if it is established by the evidence.

As to whether the accused took part as the prosecution contends, the Court can only look at the evidence before it. The fact that he drove the attackers to the scene suggests complicity. There is his statement to the police and his evidence on oath in court denying that he was party to the attack. But the statement and his evidence don’t agree. It’s only his evidence in court that is relevant but the fact that such is contrary to a previous statement is relevant to his credibility. He denied parts of his statement to the police were true.

Part of his denial of the accuracy of the statement included a claim that the police had made him tell the “untruths” he referred to. When he did this I again considered whether the accused was if if questioning the admissibility of the statement as a whole. However counsel for the defence did not pursue that matter, the accused made no further challenge to the admissibility of the statement and I decided that voluntariness of the statement to the police was not in fact been challenged.

Looking at those statements both to the Court and the Police and the evidence during the trial, the accused says he met David and Ors by chance. He had had his fathers car at Michael Awais’ that night and was inside the house. According to the accused, by chance, David who he sees some 2-3 times a year, sees this accused father’s utility parked ouside Michael Awai’s house and comes inside the house hoping to find the accused and asks for a ride to 2 Mile.

During the course of that trip there is no conversation between David and the accused for example which would seem unusual for persons not seeing each other for such a long time. The accused says that in fact he was listening to the radio and concentrating on his driving.

Again the accused told of how he turned off at the Hubert Murray highway at the YWCA to go to Korobosea That is a unusual in that having come all the way from Gordons along Waigani Drive and the Hubert Murray highway it was only at the very last minute that any opportunity was taken to travel into Korobosea. The Accused was questioned about this and said that he had forgotten that there was an intention to drop off the boys on the back of the utility at Korobosea and only at the last minute David Koito instructed him to make that turn.

It is also somewhat remarkable that the course that the accuseds’ utility took from the YWCA followed the course taken by Mr Justice Barnetts’ own car into Gebose Street.

The judge said that in fact his vehicle was attacked the moment he stopped outside his relatives flat. That would have placed the accuseds’ utility almost right behind the judges’ car as it travelled along Doreen Street and into Gebosi Street. The accused says that in fact that he did not see the Judge’s car until he suddenly was called to stop right beside it.

He says he stopped at the request of David who told him to stop just after one of those at the back had called out for the driver to stop. The accused acknowledged that in fact his car must have entered Gebose Street almost at the same time as the judges’ car and had been seen by one of those at the back of the utility before he did. This despite his concentration on his driving.

It was the accuseds’ contention that shocked by the assault he had left almost immediately that he was only on the scene some 10 to 20 seconds. Certainly the whole of the incident would not have taken a great deal of time. But John Darius and Akuila Tokau who walked slowly to the scene found the utility still at the rear of the judges car after the assault had taken place on the motor vehicle and Mrs Barnett had left the scene and ran for help, the Judge had broken free and being assaulted again outside the motor vehicle and was then running towards the intersection for help. All these things had occured and yet the accused was still sitting in his utility when Akuila Tokau and Darius got to the intersection. They saw the utility leaving taking some of the attackers with him.

The accused told the Court that as soon as he drove off he went to his home though in fact he had told the police that he slept the night at Erima after dropping off some three or four of the attackers. He acknowledged as well that he had swerved his car as the judge ran towards him but he had believed that the judge would leave the road in the opposite manner to which he in fact did. His driving the utility in that manner was in no way an attempt to drive over the judge.

Overall having considered the evidence and observed the accused under cross-examination I am satisfied that he was not telling the truth regarding his being at the scene that night. I am satisfied that he drove the attacking party there and waited for as long as he felt was safe before taking off with those who scrambled back on board.

His presence was not accidental. Michael Awai was plainly a reluctant witness, under stress in having to deny that he had seen his cousin the accused that night. With that support to this accused’s story gone, the supposed chance meeting with David Koito (which was unlikely in the first instance) becomes even more doubtful.

I believe that the accused was in fact in company with the attackers that night, that they were cruising about the town, saw the judges’ car and decided it was a suitable victim and followed it to Gebose Street where they attacked for the purposes of assault and theft.

I have found that the charge of attempted of murder cannot be sustained. I find however that the accused was party to an unlawful assault and that during that assault Mr Justice Barnett received grievous bodily injuries the accused is therefore found guilty and convicted on the alternative account.

Lawyer for the State: Public Prosecutor

Counsel: M. Unagui

Lawyer for the Accused: Karingu Sitapai & Kemaken

Counsel: K Karingu