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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO.880 OF 2013
BETWEEN:
THE STATE
AND:
JOHN BOKI
Accused
CR NO: 872 OF 2013
BETWEEN:
THE STATE
AND:
JUSTIN TALISO
Accused
CR NO: 1240 OF 2013
BETWEEN:
THE STATE
AND:
CAIN HAIRA
Accused
Popondetta: Davani J
2016: 22ndApril, 8th May
Counsel:
Mr E.Yavisa, for all three Accused
Mr A. O’Conner, for the State
VERDICT
8th May, 2016
1. DAVANI J; On 23rd April,2016, the State presented an indictment alleging that JOHN BOKI, of Budua, Bogia, Madang Province; JUSTIN TALISO of Daio, Alotau, Miline Bay Province and CAIN HAIRA of Toina, Afore, Oro Province (‘all Accused’), did on 24th November, 2011, at Daka Compound, Popondetta, Oro Province, intend to disable and unlawfully wound one GREG BINDA KARO ( the ‘Victim’), charge laid under s.315(a) of the Criminal Code, as amended.
2. IN THE ALTERNATIVE, the State alleges that on 24th November, 2011, at Daka Compound, Popondetta, Oro Province, all Accused did unlawfully cause grievous bodily harm to the Victim,
charge laid under s.319 of the Criminal Code, as amended.
3. The State also invokes ss.7 and 8 of the Criminal Code, as amended.
SS.315 (a) and 319 of the Criminal Code, as amended, reads as follows;
“315. Acts intended to cause grievous bodily harm or prevent apprehension.
A person who, with intent-
(a) to maim, disfigure, or disable any person; or
...
Penalty subject to section 19, imprisonment for life”
“319. Grievous bodily harm.
A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 3 years”
State’s allegations
4. The State alleges that on 24thSeptember, 2011, all Accused were part of a group of policemen who attended a disturbance at Isivi Street, within the township of Popondetta. The State alleges that thereafter, all accused then chased the Victim and his companions who crossed the Bangoro River and into the Daka compound. That after about 30 minutes, the Victim fell asleep.
5. The State further alleges that all Accused then fired shots from their guns, which shots woke the Victim up. When he awoke, the State alleges that he saw the accused Cain Haira and another policeman stand in front of him at the right side of his leg. The State alleges that Accused John Boki was also there and that it was him who pointed an M16 rifle at the Victim and who asked where the Victims other friends had gone to. At that time, the State alleges that another policeman who was there said “I will shoot you again so tell me where your friends ran away to”. The State alleges that at that time, the Victim could not move because both his legs had been shot. The State alleges that accused Justin Taliso was with the group of policemen present at the scene and was armed with an automatic rifle.
6. The State invokes s.7 of the Criminal Code, as amended, and alleges that at the time the offence was committed, that all Accused were together and acted as a group and that regardless of who fired the shots that injured the Victim, that they are all equally liable under s.7 of the Criminal Code, as amended.
7. The State alleges that all Accused were part of an armed group of policemen who formed a common intention to prosecute an unlawful purpose, namely to apprehend the Victim and members of his group, by using any means, lawful or not. The State alleges that the Victim’s injuries were a probable consequence of prosecuting that common purpose. And that if the court finds all Accused not guilty under s.7, that they can all be convicted under s.8 of the Criminal Code, as amended. (‘Criminal Code’).
8. On arraignment, all Accused pleaded not guilty to the 2 charges and the matter proceeded to trial.
Accused’s Defence
9. Mr Yavisa submits that all Accused generally deny the State’s allegations.
States evidence
10. The State called 2 witnesses. They are;
Defence’s evidence
11. All Accused gave sworn evidence. They did not have any other witnesses.
Issue
12. The main issue before the court is whether all Accused intended to maim, disfigure or disable Greg Binda Karo, on 24th September. 2011. It means I would have to decide whether all Accused or 1 or 2 of them, were in possession of a gun/s and shot at Greg Binda Karo.
13. Of course there will be other related minor issues as well, which will arise in my analysis of the evidence. I will also form conclusions and make findings of fact in my discussion of the issues and the minor related issues.
No case submission
14. Defence counsel made a no case submission under the first leg of State v Paul Kundi Rape[1976] PNGLR 96 which I refused. The first leg of Paul Kundi Rape stands for the proposition that where there is no case to answer, an accused may not, as a matter of law, be called upon to answer it. Effectively, what this means is that the judge has to examine the evidence as a question of law to determine “whether the evidence supports the essential elements of the offence “see The State v Roka Pep (No.2) [1983] PNGLR 28. I refused the application because it required that I review the evidence. And it is of fundamental importance to a fair trial in our system that a judge as a tribunal of fact never be required to weigh up the evidence more than once, and then, only when all of the evidence is in. Any weighing of the evidence by a court, should be kept to the absolute minimum. See The State v Lasebose Kuriday (1981) N300.
Analysis of submissions by all parties and the law
15. I will review the evidence of all Accused and the Victim after which I will discuss the evidence of all other witnesses including the evidence tendered by consent. This will be done throughout the analysis after which I will discuss the law.
Evidence tendered by consent
16. The evidence tendered by consent were marked as exhibits, as shown above. I will refer to the document/s at the appropriate time, during my discussion and analysis of the related issues and evidence.
Does Isivi Street have a reputation?
17. The general evidence is that Isivi Street in Popondetta Town carries with it a notoriety that it is frequented by criminals and thugs and generally, those wanted by the Police. However, there are also law abiding citizens who reside on Isivi Street and who are often subjected to the bullying and criminal activities and tactics carried out by these young men. That evidence is not disputed.
Were all Accused authorised by their superiors to attend at Isivi street, Popondetta, on 24th September, 2011, to investigate a disturbance being carried out by a large group of drunk and disorderly young men and to arrest those responsible?
18. The undisputed evidence is that upon receiving a tip off from an informant, who was a resident of a neighbouring street next to Isivi Street, that there were armed criminals who had just held up a PMV, policemen were instructed to attend upon the scene of the hold up and to arrest those responsible.
19. Apart from that, the Record of Interview of accused Cain Haira, tendered and marked exhibit “I”, states at Q. and A. 22 that the Police received intelligence information that there were armed youth on Isivi Street, who were being drunk and disorderly, and because of that, the Police were requested to proceed to that area. That prior to 24th September, 2011, between 2 weeks up to the 24th, that there were a lot of armed robberies, break enter and stealing and hold ups along the road toward bottom town. There were also threats made to Police men’s families at the nearby Police Barracks because of a shooting at Niugini compound, Isivi Street, SBS compound and Goruta Street, which were the hot spot areas in Popondetta Town. That when the Police received that information, they had to act fast.
Were all Accused issued with firearms that day, 24th September, 2011, for the sole purpose of apprehending those responsible?
20. The Statement of Senior Constable Justin Erepa, OIC Firearms, Popondetta Police Station, dated 30th May, 2012, marked exhibit “F”, states the following;
21. So, accused John Boki and Justin Taliso were not issued weapons on 24th September, 2011. It seems they have had these weapons in their possession since 25th July, 2011. There is no evidence from the Police as to why the both accused have had these weapons since 25th July, 2011 and why they were not taken off them. The same can be said of the other policemen who were issued firearms on 25th July, 2015. See my discussions below.
22. The Police Departments Weapons Issue Register, marked exhibit “Q”, shows that guns of various makes and sizes were issued to 15 policemen on 25th July, 2011. Of these guns, only 4 were returned, on 29th September, 2011; 4th October, 2011; 2nd December, 2011 and 16th December, 2011.
23. The Weapons Issue Register does not show the weapons issued to accused John Boki and Justin Taliso, to have been returned. There is no evidence as to what became of these weapons. There is also no evidence as to what became of the weapons issued to the other policemen named in the Weapons Issue Register, apart from the 4 who returned their weapons. Neither counsel for the State and the co accused elicited this information from the co accused.
How many policemen attended at Isivi Street, that day?
24. There is no evidence from the Popondetta Police, as to how many officers were dispatched that day to apprehend the suspects or drunks at Isivi Street. That evidence would have preferably been from the, Officer in Charge of Popondetta Police.
25. The statements tendered into court are also very sketchy and are mostly hearsay material which I will not place any weight on, but which I will mention for the record, to demonstrate what I mean. The statements state these;
26. All accused gave evidence of several policemen being despatched in 3 vehicles to Isivi Street and how they were split into groups and gave chase to the suspects.
27. Indeed, I can conclude that there were other policemen at Isivi Street, apart from all Accused and that those policemen were armed.
Who fired their weapons?
28. Accused John Boki gave conflicting evidence as to the number of shots that were fired from the weapon he was holding. However, he is adamant that he fired warning shots and that either other policemen or the criminals, could have fired the other shots.
29. Accused Cain Haira and Justin Taliso said they did not fire their weapons.
30. There is evidence from bystanders and witnesses that there were gunshots fired that day at Isivi Street.
31. Indeed, as far as I can tell, there is no evidence that the guns held by the 3 Accused, as described above, had been discharged. There is no evidence of bullets having been fired from the guns they had. The police had not conducted their investigations to show who exactly fired the shots that injured Greg Binda Karo in the both legs. I am sure bullet casings from guns that were fired would have confirmed who exactly shot Greg Binda Karo. However, that is not in evidence.
Did the criminals have weapons that day?
32. According to accused Cain Haira’s record of interview, Q. and A. 36, he heard 3 or 4 gunshots and did not know who exactly fired their gun, but one of the criminals ran to where he was and climbed up a hill. He had a factory made shotgun with him. That evidence is not disputed.
33. He also said at Q. and A. 38 that they did confiscate 2 home made guns at the scene of the crime and that these guns were modified like an M16. He said that these homemade guns were left with CID officer, Simon Thogkoe.
Accused John Boki said the same thing in evidence and Justin Taliso also said the same thing.
Analysis of the elements under s.315 (a) of the Criminal Code, as amended.
34. The State submits that the elements of count 1, i.e, ss.315 (a) are;
35. The State also relies on s.7(c) and s.8, in the alternative –
36. The State submits that the elements of count 2 under s.319 are;
37. The State submits further, that as with the first count, the State must prove one of the following elements;
38. I discuss the elements of the 2 counts, below.
39. The State submits that Greg Binda Karo was shot in both legs whilst he was asleep. And that this could not have occurred by accident by 2 stray bullets. That it is consistent with 2 shots aimed at him at close range in order to force him to tell the Police where his friends were.
40. Firstly, there is no evidence that Greg Binda Karo was shot at close range. There is also no evidence that this was done by the co accused or at least one of them, to force him to tell them where his friends were. Although there is evidence that when he opened his eyes, he realised that he had been shot in both legs, that there is no evidence that this was done at close range. For all we know, he could have been shot when he was on his feet.
41. The evidence is that Greg Binda Karo had been consuming Eveka or home brew for 2 continuous days and was in a stupor. He could not run or walk and had to be assisted by his friends, when the police gave chase.
42. The only evidence of the co accused being anywhere near Greg Binda Karo, was when he opened his eyes. However, that evidence is very contradictory and shaky in that in cross examination, he said the co accused were not where he was when he opened his eyes. In re examination, he tried to correct that.
43. There is no evidence before the court as to whether the co accused are known to Greg Binda Karo and that he had some past knowledge of who they were. For all we know, just because the co accused were arrested for this offence and the fact that parties had been going and coming to Court, would mean that Greg Binda Karo then learnt who the co accused were.
44. Another factor that is most vital to the success or not of this case is the State’s submissions that Greg Binda Karo was shot at close range. I do not see how the State expects the court to uphold these submissions when there is no medical evidence that the wounds sustained by Greg Binda Karo, were as a result of being shot at close range. The only medical evidence is the medical report from the Popondetta General Hospital dated 20th November, 2011, marked exhibit “N”, which states that “Mr Greg Bainda has bilateral fractured femur (shattered) from gun shot wound and was admitted.”
45. The treating doctor did not give evidence to say that the wounds described in the medical report were as a result of being shot at close range. There is also no evidence of the kind of weapon that would have caused the injuries sustained by Greg Binda Karo, as described in the medical report.
46. And in relation to the hypothesis that Greg Binda Karo was shot at close range, there is no expert evidence showing the bullets trajectory and the height at which the weapon was fired to confirm that he was indeed shot at close range, and the kind of weapon used.
47. Although the co accused were purportedly seen by Greg Binda Karo when he opened his eyes and by Malcolm Mond, that is not evidence of intent to commit an unlawful purpose. The co accused were part of a group of policemen who were giving chase to criminals and as far as I can tell, were there at the scene of the crime when Greg Binda Karo opened his eyes.
48. Indeed, somebody shot Greg Binda Karo. As to whether it was done by the co accused in the prosecution of an unlawful purpose, which is to maim, disfigure or disable, has not been established beyond reasonable doubt.
49. There is no evidence that it was the co accused or at least one of them, who shot and wounded Greg Binda Karo.
50. As far as I can tell, the State is relying very much on the fact that accused John Boki, may have fired a few shots during the chase and that because the co accused and other policemen were around him when he opened his eyes, that John Boki is definitely the shooter.
51. If the State’s assumption and submission is that Greg Binda Karo was shot at close range, then the States hypothesis that Greg Binda Karo was shot during the chase, is definitely eliminated. If that had occurred, then Greg Binda Karo would have said that. However, he said, when he opened his eyes, he realised he had been shot. Was he shot just before he fell into a stupor? Or was he shot whilst he was lying there? And was he in the right frame of mind, mentally, to know when he was shot especially when he was too drunk to walk and just collapsed into a deep sleep, after he had just been chased by the Police. It is all too incredulous.
52. This element has not been proven beyond reasonable doubt.
3. Element 3: The co accused all had intent to disable Greg Binda Karo
53. The States submissions in relation to proof of intent are all based on inferences. The State submits that for the co accused to be guilty under s. 8, that it would have to show that the co accused formed a common intention with the other policemen to arrest the drunken men. That there was excessive forced used and that the injuries to Greg Binda Karo, were a consequence of that common, albeit, inferred intention.
54. The State submits that the evidence on which such inferences and a finding on intention will lie, are the following;
55. I discuss the inferences below.
56. Inference 1; The evidence is that Greg Binda Karo awoke to see the co accused and other policemen, looking at him. That is not evidence of an intention to disable or harm him.
57. Inference 2; Accused Justin Taliso’s explanation for this is that they just happened to come on the scene and so he dragged the person lying on the ground to where his counterpart or friend was. He said he did not know the person was dead and did not check. That everything happened suddenly, he dragged the person on the ground because sometimes, criminals feign death and the policemen end up being shot.
58. Inference 3; The State’ submissions are that the injuries to Clarence Dadada’s face and chest, must have occurred after he was shot. That is clearly an assumption which is unsupported by evidence.
59. Inference 4; Even if the accused had shot at a fleeing suspect, his evidence is that it was a warning shot. That does not make him the person responsible for inflicting the injuries on Greg Binda Karo.
60. Inference 5; The States submissions are in correct because John Boki did give some names when questioned. Cain Haira also gave the names of persons the Police officers were instructed to apprehend. That is set out above.
61. These inferred elements have not been proven beyond reasonable doubt.
Analysis of the elements under s.319 of the Criminal Code, as amended.
62. The State submits that these are the elements to be proven;
1. Element 1; The shooter acted unlawfully
Again, in reiterating myself, I stress that it is not “undisputed”, as submitted by the State, that the shooter shot Greg Binda Karo in both legs whilst he was sleeping. That submission is disputed to a large extent and cannot stand as I have been above.
2. Element 2 and 3; The shooter wounded Greg Binda Karo and caused GBH
There is no evidence that the co accused or one of them, shot Greg Binda Karo.
Circumstantial evidence
63. The State submits that its case is purely circumstantial. The law on circumstantial evidence in Papua New Guinea is well settled. The principle involving circumstantial evidence in Barca v The Queen [1975] HCA 42; (1976) 50 ALJR 108 at 117, and in McGreevey v DPP [1973] 1 WLR 276, are applicable and appropriate to the circumstances of Papua New Guinea: John Peng v The State [1982] PNGLR 331 (Pratt J, with Kidu CJ agreeing). See also The State v Tom Morris [1981] PNGLR 493, in which Miles J held Barca v The Queen is applicable in Papua New Guinea.
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the other than the guilt of the accused’: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘ the only rational inference that the circumstances would enable them to draw ‘: Plomp v The Queen (1963) [1963] HCA 44; 110 CLR 234, 252. See also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The King, 661. These principles are well settled in Australia”.
64. Where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498 (Kearney DCJ)(followed in The State v Jupui Kapera (1986) N567; The State v Marianno Wani Simon & Alan Oa Koroka (1987) N600; The State v Michael Gende (1997) N1678; Garitau Bonu and Rosanna Bonu v The State (1997) SC 528; The State v John Wanjil (1997) N516).
65. In The State v Marianno Wani Simon and Alan Da Koroka (1987) N600 the accused were charged with the murder.
“The issue of the accused’s false denials and false statements need to be addressed. Great care must be taken in a case such as this concerning the use to be made of false statements. As a general proposition, it must be accepted that a false denial does not prove guilt. For good reason, it has been said that people confronted with allegations of wrong doing may have other reasons not to tell the truth, apart from hiding their guilt.”
66. The court must decide whether the guilt of the accused is the only rational inference that the circumstances would enable it to draw. When the court finds that the state of the evidence is such that no reasonable inference can be drawn on the guilt of the accused or would make a conviction unsafe, an acquittal would follow instead.
67. It is also the credibility of witnesses that will determine how the court decides in the matter. As the court said in State v So’on Taroh (2004) N2675
“Findings of credibility are in turn dependent on matters of logic and common sense as well as the demeanour of the witness and any inconsistencies in his evidence.”
68. And in The State v Cosmos Kutau (No.1) (2002) N2245, the court said:
“Evidence must be tested against logic and common sense to determine credibility.”
69. As to common sense and logic, the court said further in Cosmos Kutau;
“Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty.”
70. In this case, several policemen were given the task of apprehending criminals and persons who had a long history of being involved in criminal activities in Popondetta town.
71. Policemen in 3 vehicles went to the crime scene and were involved in the chase after splitting up in two groups. Several of these policemen had firearms. The State was dependent very much on co accused’s evidence as to how many shots were fired that day. But there is clear evidence that people heard several shots being fired. Nobody gave evidence for the State in relation to the number of shots they heard that were fired that day and who fired those shots. As far as I can tell, it could have been anybody.
72. In fact, upon the court’s refusal of the no case submission, it became apparent to the court that upon the State’s cross examination of accused persons, that it was looking to adduce evidence that would be in its favour. E.g there were several instances where counsel for the State repeated the same question at least 4 times, which, unfortunately, Defence did not object to.
73. Apart from the uncertainty as to the number of shots that were fired that day, the co accused’s evidence is clear that several policemen were involved in the chase. Their evidence is clear that both the policemen and the suspects they were pursuing, were armed.
74. There is no clear evidence as to who shot Greg Binda Karo in the both legs.
75. Can the court safely infer from the surrounding circumstances, that it was one of the co accused who shot Greg Binda Karo?
76. The evidence at that time is so uncertain. Greg Binda Karo woke up to see about 5 policemen looking at him and speaking harshly to him. That is not evidence on which the court can draw an inference that one of the co accused or the co accused shot him.
77. The fact that the accused Justin Taliso dragged Clarence Dadada for about 20 metres to Greg Binda Karo, is definitely not the basis on which the court can safely infer, that Justin Taliso shot Greg Binda Karo.
78. The fact that Justin Taliso placed Clarence Dadada next to Greg Binda Karo, is not the basis on which the court can safely infer that he or one of the accused shot Greg Binda Karo.
79. The fact that Clarence Dadada had bruises on his face, is definitely not the basis on which the court can safely infer that the co accused or one of them, shot Greg Binda Karo.
80. Indeed logic and common sense play are very large role in the above reasoning. The credibility and the demeanour of the co accused are secondary, in my view, to logic and common sense. Indeed, if the situation before the court does not make sense or is illogical, then the inferences put before the court, in this case by the State, must be rejected.
81. All co accused gave convincing evidence. Definitely, with accused John Boki, there were a lot of issues in relation to interpretation. The interpreter wrongly translated, on many occasions. And it was obvious John Boki was having a lot of difficulty understanding and answering questions however, he eventually answered the questions.
82. All accused were firm in their evidence and never shirked. Accused john Boki may have been swayed in cross examination. However, the inferences relied on by the State and upon which the State submits this court should make a finding of guilt, is unreliable and unsubstantiated. Indeed, a conviction on the proposed inferences is very unsafe.
Conclusion
83. I have found that the State has not proven beyond reasonable doubt, the elements in ss. 315 and 319. And that is both in relation to the interpretation of the physical and circumstantial evidence.
I order the following;
1. All accused are guilty, as charged;
2. That all accused are acquitted of the both charges;
3. That bail monies paid by all accused, be refunded to them, upon production of receipts.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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