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State v Talian (No 1) [2003] PGNC 119; N2381 (15 April 2003)

N2381

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 749 of 2001

THE STATE

-V-

LARSEN TALIAN

Wabag : JALINA, J.
2003 : 2- 4, 7 - 9 & 15th April

CRIMINAL LAW – Evidence – Accused charged with assault occasioning grievous bodily harm – Accused alleging injury to victim self inflicted - Accused remaining silent when interviewed by police – Defence witnesses were persons who held responsible position in the village but failed to assist police during investigations – Accused and his witnesses giving evidence for the first time at trail about injury to victim having been self inflicted – Weight to be attached to such evidence.

Case cited:
Paulus Pawa –v- The State [1981] PNGLR 498

Counsel:
S. Kesno for the State

P. N’dranoh for the Accused

15th April, 2003

JALINA, J: This accused has been charged with unlawfully doing grievous bodily harm to one Asken Yapun at Rakamanda Village, Wabag on 21st February 2000 to which he has pleaded not guilty.

The prosecution has called oral evidence from the victim Asken Yapun and his daughter Janet Asken as well as Dr. Gibson Pawape in addition to the record of interview and statements, which were tendered by consent of defence counsel.

The evidence of the victim Asken Yapun was to the effect that on Monday 21st February 2000 he and his wife and their daughter Janet Asken came to Wabag Police Station to report an incident on Saturday 19th February 2000 when the accused chopped Janet Asken on her leg with a bushknife. Janet was the former wife of the accused. After reporting the accused to the police they got on a PMV and returned to Rakamanda Village where they as well as the accused come from.

As they got off the PMV bus the accused who was at the vicinity of Rakamanda Market approached them and questioned them as to why they had reported the incident involving his attack on Janet on Saturday 19th Februrary 2000 to the police. When the victim replied among other things and told the accused that the law was for everyone, the accused ran at him with a bushknife and swung hard towards his neck but when he put up his left arm to protect his neck, the accused chopped his left forearm. The victim fell to the ground in pain and was bleeding so he was taken to the Rakamanda Aid Post but was later transferred to Sopas Hospital.

Janet Asken, the daughter of the victim, gave evidence which was similar to that of the victim except that she was in great pain from the injuries inflicted on her leg by the accused on Saturday 19th February 2000 and was walking with the support of a stick. She showed a completely healed scar which showed that the wound must have been deep at the time the accused inflicted it. The accused in his evidence on oath denied attacking Janet on 19th February 2000 with a bushknife but stated that she must have cut herself on a broken bottle or tin when he pushed her into a ditch at Rakamanda Market during an argument between them on that day. I will return to this aspect as well as other aspects of the accused’s evidence later in this judgement.

The Medical Report of Dr. Gibson Pawape dated 29th March 2001 states that the victim:

"Sustained bushknife wound on the 21/02/2000. He was admitted to Sopas Hospital on the same day and discharged on 17/04/2000.

Secondary suturing of the wound was done at Sopas giving him a scar. Subsequent change of dressing and antibiotics were given.

He feels disabled and his left arm is useless with inability to use it.

Examination today, that is 13 months later, left hand grip is incomplete, left thump apposition is weak 2/5 power.

Left ring finger and last finger contraction and clawing.

Finger abduction, adduction weak with 0/5 power. Wrist extension/flexion weak 3/5 power.

General wasting of all left arm muscles with some forearm flexure.

There is a linier scar from left hypotheses imminence, and scar forearm is 26 cm. Oblige scar ring around the distal forearm.

My opinion is that the patient sustained permanent ulna and radial nerve damage of his left hand.

The left hand will be unable to grip or be used normally again."

The production and demonstration by the victim in court of his left forearm confirmed the scars found by Dr. Pawape as well as the conclusion reached by the doctor that the left hand had become virtually useless in so far as its normal functions were concerned.

Evidence through the statement of police investigator Senior Constable Lance Ivarea shows that a compliant against the accused for causing grieves bodily harm to his former wife Janet Asken on 19th February 2000 was lodged with the CID office at Wabag Police Station on 21st February 2000.

However, another complaint was lodged against the same accused on 22nd February 2000 for attempted murder of Asken Yapun, Janet’s father, on 21st February 2000. He tried to obtain the victim’s statement as well as statement of other witnesses but could not do so due to the victim Asken Yapun being hospitalized at Sopas Hospital for 2 months. Then, after obtaining the victim’s and other witnesses’ statements after the release of the victim from hospital, his attempt to arrest the accused failed as the accused continued to elude police. The accused was finally arrested by Mt. Hagen police at his village of Rakamanda some 10 months after the alleged offence against Asken Yapun.

Then on 22nd January 2001 he commenced the record of interview but had to suspend it as the accused wanted to exercise his constitutional rights to speak to a friend as well as seek legal advice. The interview did not resume until 3 weeks later.

When the interview resumed the accused opted to remain silent throughout the interview in the exercise of his constitutional rights. So from the start, Senior Constable Iravea had no idea what the accused’s side of the story pertaining to the injury to Asken Yapun’s left forearm was.

At the close of the prosecution case, Mr. N’dranoh for the accused sought to make a no case submission but after I intimated to him that the accused had a case to answer, he went into evidence and called the accused to give sworn evidence. The accused’s sworn evidence was followed by sworn evidence from John Pakau, the SDA Pastor of Rakamanda Village. He was followed by Talau Taie and Yau Pakio both of whom were village court magistrates of Rakamanda Village.

The primary and basic evidence of the accused as well as his three (3) supporting witnesses were directly the opposite of the evidence of Asken Yapun and his daughter Janet Asken the former wife of the accused. The accused and his supporting witnesses’ evidence was that it was the victim Asken Yapun who started arguing with the accused at Rakamanda Market on the afternoon of 21st February 2000 and all of a sudden he (victim) ran at the accused and swung his long bushknife at the accused’s neck but the accused ducked to avoid the victim’s bushknife and when he (the accused) put up his bushknife which was in his right hand in self-defence, the victim having missed the accused’s neck made a 360 degree turn and in the process of turning, his left forearm struck the accused’s bushknife thus resulting in the injury to his forearm.

The motive the accused gave for the victim attacking him was the disharmony that previously existed between him and the victim over the victim’s opposition to his daughter Janet marrying the accused because the accused’s father had killed the victim’s father while they were very young.

The accused’s three supporting witnesses namely Pastor John Pakau and village court magistrates Taie and Pakio claimed that the offending party was the victim and the injury (to him) was caused by the victim’s own conduct but they took no action at all even to the extent of telling the police investigator that the accused was in fact innocent. I will return to this aspect later in this judgement.

Even the accused, as I have said earlier, failed to give the police investigator Senior Constable Lance Iravea his side of the story as to what happened at the time of the alleged offence.

So the accused’s defence in law and the explanation by him and his witnesses became known to Senior Constable Iravea and the State Prosecutor Mr.Kesno for the first time during trial when the defence counsel started putting the defence case to prosecution witnesses during cross-examination. The defence case that was put to prosecution witnesses was confirmed through sworn evidence of the accused and his 3 supporting witnesses.

The Prosecution witnesses particularly the victim Asken Yapun and his daughter Janet Asken, were not shaken during cross-examination.

With the evidence from the prosecution and the defence being in direct conflict as to what happened immediately prior to the injury to the victim’s forearm, the outcome of this case depends on the credibility of witnesses from both sides.

In other words, it is really a question of which side I should believe in reaching my decision on the guilt or innocence of the accused Larsen Talian.

As I ponder over the evidence from both sides in light of the submissions put to me by both counsel, I am guided by the statement of Andrew J (as he then was) in Paulus Pawa –v- The State [1981] PNGLR 498 at 504:

"An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened".

That statement is founded on common sense and reflects normal human behaviour whereby a person who is falsely accused would at the first available opportunity give his side of the story to show that he did not in fact conduct himself in the manner alleged and in so doing protect his reputation or even exculpate himself. If he does not give a very good and credible explanation for his failure, his credibility would be severely damaged if he reserves his explanation until trail.

A person who claims to be completely innocent should give his explanation early as it could exculpate him notwithstanding his constitutional right to silence. A witness who seeks to have his evidence accepted as credible should also give his statement to the relevant authorities such as the police at the first available opportunity where a criminal charge is involved unless he has a very good reason not to do so.

As I analyze the evidence adduced by both the prosecution and the defence in light of their respective submissions, I must say at the outset that I am not impressed by the demeanour of the accused and his witnesses. They would not answer simple questions quickly but appeared to be evasive. The accused appeared to be a well educated man who sometimes gave his evidence in English and so was Pastor Pakau. The other two, namely Taie and Pakio were village court magistrates but they did not appear to understand the primarily role and function of a village court magistrate which was to ensure peace and harmony in the village and the role they and police play where serious crimes are committed. They would have been expected to have attended the Wabag Police Station and informed the police about the victim and not the accused being the instigator of the attack but they failed even though Wabag Police Station is only a few minutes drive from Rakamanda Village.

The two prosecution witnesses namely Asken Yapun and his daughter Janet were simple villagers who gave their answers without wavering even under intense cross-examination by Mr. N’dranoh for the accused. Consequently, apart from the reference to the length of the bushknife used by the victim and the accused at 1.5 metres which clearly showed that it was too long and therefore an obvious mistake, I accept the submission put to me by the State Prosecutor Mr. Kesno including the various discrepancies he pointed out which were in the evidence adduced by the defence.

The whole case to my mind, depends on what weight I should attach or what credence I should give to the accused and his witness giving their side of the story for the first time during trail.

From the evidence as it stands, I cannot be satisfied as to the motive for the victim to attack the accused. The disharmony between the accused and the victim over the accused’s father killing the victim’s father while they were both young was too remote to have suddenly motivated the victim to attack the accused as soon as he saw him at Rakamanda Market.

But the victim having argued with the accused over his daughter Janet marrying the accused and then the victim taking Janet to the Wabag Police station and laying a complaint against the accused is a clear motive for the attack. If the victim instigated the attack on the accused at Rakamanda Market on the day in question, there is no evidence of any argument between them immediately prior to the attack by the victim.

The accused has had more than ample opportunity to give his explanations to the police his side of the story. As pointed out in the statement of Senior Constable Lance Iravea and also by Mr. Kesno in his submissions, the record of interview commenced on 22nd January 2001 but had to be suspended for 3 weeks to enable the accused to exercise his constitutional rights to see a friend or seek legal advice. When it resumed, the accused had the opportunity to give his side of the story but he opted to remain silent. Whilst it may be his constitutional right to remain silent one does not continue to remain silent but would give his side of the story if he considered himself innocent.

He again had another opportunity in the District Court which the magistrate gave during his committal but as is clear from his s.96 Statement he opted to remain silent.

The accused’s three supporting witnesses all chose to remain tight-lipped until trail when they told the court that it was not the accused but the victim who attacked the accused and that the injury sustained by the victim was self-inflicted.

The witness John Pakau was a SDA pastor at Rakamanda Village. As a pastor one would have expected him to be more concerned about the accused being arrested if the accused was not the perpetrator of the crime and gone straight to the police and told them of the true story. Village Court Magistrates of Rakamanda namely Taie and Pakio should have been equally concerned and also gone straight to the police if the accused was innocent as he claimed he was.

But when the accused and his witnesses came with exculpatory evidence for the first time during trail, it raises the question as to whether or not the accused was innocent after all. I consider that all the evidence given by the accused and his witnesses distancing the accused from the crime and shifting all the blame to the victim are all evidence that the accused and his witnesses sat down and discussed and plotted over a long period of time. I therefore place little weight on their evidence.

Even the nature of the injury sustained by the victim are not consistent with someone cutting himself on a fixed bushknife after turning about 360 degrees after a hard swing at someone and missing the intended target. The manner in which the accused and his witnesses described the injuries sustained by the victim when compared with the medical report is just too good to be true. It should be a kind of story that should have become a joke to everybody let alone defence counsel. With the kind of story the accused and his witnesses have put up, it seems to me, with respect, that defence counsel has been taken for a ride.

Counsel should, in future, distinguish between credible evidence which are capable of acceptance by the court and those that are exculpatory statements of recent origin which I find the accused and his witnesses to have invented.

I totally reject their evidence. I am therefore satisfied beyond reasonable doubt that the accused Larsen Talian was the one who attacked the victim in the manner described by the victim and the injuries to the victim’s left forearm was inflicted by Larsen Talian. I accordingly convict him of the offence charged.
__________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Public Solicitor