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State v Igimo [2011] PGNC 352; N4401 (8 September 2011)

N4401

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1424 OF 2010

STATE

V

TERI IGIMO

Accused

Goroka: Ipang AJ
2011: 22 & 25 August & 8 September

CRIMINAL LAW – Criminal Code Act, - Acts intended to cause grevious bodily harm or prevent apprehension – s.315 – State relies on documentary evidences excluding medical report – Medical Report crucial evidence needed.

CRIMINAL LAW – Evidence – confessional statements – Record of Interview (ROI) & s.96 District Court statement contain admission of assault but not admission on bodily injury –fractured rib.

Cases Cited

State v Jeffery Malepo (No.2) [1996] PNGLR 432

Counsel

Mrs. Kuvi & Ms. B.Gore, for the State

Mr. R. Kasito, for the Accused

DECISION ON VERDICT

1. IPANG AJ: The accused Teri Igimo pleaded not guilty to one count of with intension to do grevious bodily harm to Kamogopi Asewawo, did unlawfully cause grevious bodily harm to the said Kamogopi Asewawo contrary to s.315 (b) & (d) of the Criminal Code Act.
   

Brief Facts

2. The brief facts of the case are as follows: The State alleged that on the 4th of December, 2009 at Iwaki village Okapa, Eastern Highlands Province, the accused approached the complainant Kamogopi Asewawo who was on the roof of a house. The accused believed the victim had sexually assaulted his (accused) daughter previously. It was alleged when the accused approached the victim, he threw a stick with force that hit Kamogopi on his chest. The hit caused Kamogopi to fall back on the roof.
   

Law

3. The accused was charged under s.315 of the Criminal Code Act. This section states:

S.315 ACTS INTENDED TO CAUSE GREVIOUS BODILY HARM OR PREVENT APPREHENSION.

A person who, with intent-

(b) To do some grevious bodily harm to any person; or does any of the following things is guilty of a crime:-

(d) Unlawfully wounding or doing a grevious bodily harm to a person;

Penalty: Subject to section 19, imprisonment for life".

4. The State bears the onus of proving these elements of the offence beyond reasonable doubt:
   
   • A person (Teri Igimo)
   • With intent to do grevious bodily harm
   • To some person (Kamogopi Asewawo)
   • Does grevious bodily harm (caused fractured rib)
   • To a person (Kamogopi Asewawo)
     

State's Case

5. The State did not call any witnesses except several documents were tendered as part of State's case. The following were the documentary evidence tendered with consent.
   
   1. The Record of Interview (ROI) of Teri Igimo Pidgin original version dated 30th July, 2010 marked as Exhibit "AA"
      
   2. The Record of Interview (ROI) in English translated dated 30th July, 2010 marked as Exhibit "BB"
      
   3. The Statement of Foggy Kobege in English dated 30th July, 2010 marked as Exhibit "CC"
      
   4. The statement of Brown Kafo in English dated 30th July, 2010 marked as Exhibit "DD" and
      
   5. The section 96 of the District Court Statements of Teri Igimo in English dated 13th October,2010 marked as Exhibit "EE"
      
6. State counsel Mrs. Kuvi had referred this court to consider questions and answers given in Q.17, Q.20,Q.21 and Q.23. It is therefore appropriate that I re-state these questions and answers.
   

Record of Interview (ROI)

Q.17 later, after this, you Mr. Teri Igimo picked up a tanget stick and threw it upon a new house and assaulted Mr. Kamogopi Asewawo on his chest and he fell on the roof. What can you say about this comment?
A: yes, this is true, but it was not a tanget stick. It was a rotten tree stick.

Q.20 Mr. Kamogopi Asewawo said, all of you ran away and his daughter Ms. Nola Kamogopi climbed up the roof and brought him down on the ground. What can you say about this?
A. That's true.

Q.21 He said later, his brother in-law came and brought him to the house and laid him down. Later ambulance arrived and brought him to Ivingoi Health Centre and he was admitted. Is this true that he went to Ivingoi Health Centre and was admitted?
A. That's true but, he slept outside in the village.

Q.22 Why did you assault him with a stick and broke his chest?
A. I assaulted him, because he put his hand finger in to Miss. Mosa Teri's uterus. This was the first time. For the second time, he took her skirt out and he was having sex with her and she shouted and elder brother Oniya Igimo came and saw him and cough and he ran away.

Q.23 Do you have anything's to say in relation to the trouble?
A. I assaulted him for only these two reasons.

7. State Counsel also referred to S.96 of the District Court Statement:
   

On oath Teri Igimo of Iwaki village, Okapa District "I recall 4th December, 2009. I was at Iwaki on that date when the problem arose. Kamogopi Asewawo is my elder but he was like a father to me who took care of me for over 28 years. He is not a good person. I am a good person. He put his hand into the little girl's private parts and spoil her. He is my father I wanted to cut him but I was sorry. I gave him a chance on the first time he took off her dress and raped her. So in the morning at 10:00am I came up and hit him. I came up and got the three sticks, not tanget sticks. I held the stick and got cross with him and threw it at him. I threw the stick up at him in the presence of two village court Judges. He then at night ran away and reported here where I was then taken. That's all my stories."

Defence Case

8. Defence called no other witnesses apart from the accused giving sworn evidence from the witness dock. The accused said he comes from Iwaki village, Okapa. He said he is in court because of a trouble. The trouble was that his father raped his daughter and so he fought him (victim) he said they fought at around 10:00an on Friday, on Christmas of 2009.
   
9. He (accused) said on that day, in the morning he came up and argued with his father, he was angry and so he held a long stick and threw it up. His father was covering kunai. He said the stick did not touch him. A village court magistrate was standing and the said magistrate told him that the victim was his father and he (accused) should not hit him. He said he left the victim and went down to his house. He said he stayed at home for the rest of the day.
   

State's Submission

10. In its pre-trial review statement, defence has raised the defence of provocation but the accused did not pursue in court the defence of provocation. However, the State counsel contended that in any event, the accused had stated in cross- examination that rape was in 2005 and there was sufficient time for his passion to cool.
    
11. Mrs. Kuvi submitted that the accused admitted being angry when he threw the stick at the victim. Counsel submitted that it is not disputed that the accused intended to cause harm to the victim. When giving evidence from the witness dock, the accused said the stick did not hit the victim. This has then raised the issue of whether the stick did actually hit the victim. This will be one of the issues this court will address.
    
12. State contended that the accused own evidence showed that he was not a witness of truth. State submitted that the accused had admitted on two occasions, one at the Police Station and then at the committal court that he hit the complainant with the stick. However, when he gave evidence in the National Court he said the stick never hit the complainant. State said in cross –examination the accused said the story he gave to the court is the same as the one he gave to the police. State said the Record of Interview (ROI) tendered will show that the story he gave to the police is not the same as the one he gave to court.
    
13. State argued that the statement the accused gave at the Police Station was given at the time when the incident was fresh on the mind of the accused and when the accused knew the medical report was on file. State said at the trial, the accused knew the medical report was not on file so he changed his story.
    
14. State argued that the accused tried to make himself appear that he was not angry with the complainant and so did not throw the stick that hard. State said this was against logic and common sense. In that, how can you be so angry at someone who raped your daughter and then feel sorry for him so that you did not throw stick that hard. State submitted that the accused is lying and should not be believed.
    

Defence submission

15. The accused denied hitting the complainant with a stick when he gave evidence in court. He said he threw the stick but the stick did not hit the complainant. The accused also said he argued with the complainant and did not physically fight with the complainant.
    

Court's Analysis

16. Comparing the confessions made during the Record of Interview (ROI) with the accused, the s.96 of the District Court Statement dated 13th October, 2010 and the evidence given at the trial contained inconsistency. Evidence given at the trial is completely different from statement he made during the Record of Interview (ROI) and his s.96 District Court Statement. Accused has therefore proved himself to be untruthful and unreliable witness. He is not a witness of truth. I find him that he has lied while under oath.
    
17. I do take confessions and admissions during Record of Interview (ROI) and his s.96 District Court Statement dated 13th October,2010 to be his correct version and found that there is evidence that the accused did hit the complainant with the stick on the 4th December, 2009. This is despite the accused denying that when giving evidence in court. The courts in Papua New Guinea have held that a confession alone is sufficient to support a conviction. See the case of State v Jeffery Malepo (No.2) [1996] PNGLR 252 and also in Criminal Law and Practice of Papua New Guinea (third Edition) at p.644
    
18. I am convinced and satisfied the accused did hit the complainant with a stick. But did the accused cause grevious bodily harm that has caused the complainant to have a fractured rib? This is a crucial element to the offence under which the accused has been charged with.
    
19. In Q.19 of the Record of Interview (ROI), the accused admitted assaulting the complainant on his chest. Answer given to Q.20 seems to me that the complainant has been hurt in some way. Question 21 and answer given revealed the complainant sought medical attention. The crucial question I consider is Q.22 which states, "why did you assault him with a stick and broke his chest? Answer: I assaulted him, because he put his finger in to Miss Mosa Teri's uterus. This was the first time. For the second time, he took her skirt out and he was having sex with her and she shouted and elder brother Oniya Igimo came and saw him and cough and he ran away.
    

Did the complainant suffer a fractured rib?

20. Though there is evidence that the complainant was assaulted with a stick by the accused (as per Record of Interview (ROI) & s.96 District Court Statement) there is hardly any evidence before me that the complainant suffered fractured rib from the assault occasioned by the accused. A medical report would have accomplished that as accused had confessed to assaulting the complainant. I therefore return a verdict of not guilty.
    
21. Verdict: Not Guilty.
    

____________________________________
A/Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Accused