Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Ngotngot [2016] PGNC 123; N6306 (30 May 2016)

N6306

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 644 OF 2014 and CR NO. 1540 OF 2015

THE STATE

V

JOE NGOTNGOT

AND:

EREMAS MUTIUL

Kokopo: Anis AJ
2016: 11, 14 15, 16 and 17 March and 30 May

CRIMINAL LAW – section 315(a)(d) of the Criminal Code Act - grievous bodily harm with intent - elements of the offence discussed - element of intent absent - alternative charge - section 319 - grievous bodily harm - elements of charge and grievous bodily harm discussed - charge sustained - accused convicted of alternative charge of grievous bodily harm

CRIMINAL LAW - identification - principles discussed - assault occurred at broad daylight - complainant and other witness alleged to be intoxicated at the time of the assault - no credible evidence to support claim

CRIMINAL LAW - one co-accused exercised his right to remain silent - his record of interview was tendered without objection - it contained partial admission of assault - accused remained silent and did not explain his partial admission - partial admission used as good evidence against both accused

PRACTICE AND PROCEDURE - court considered evidence in totality - methods of considering totality of evidence discussed - second method applied - evidence of prosecution and defence considered together to determine the material facts and issue

Facts

The State charged two co-accused each with grievous bodily harm with intent, on one complainant Miriam Papakat. Both accused are policemen. The offence was allegedly committed on the complainant during police investigation into a disturbance that occurred at Kabakada village in Rabaul. Both accused pleaded not guilty.

Held:

1. The Court considered the evidence in totality following the second method that is considering together the evidence of the prosecution and the defence, to finding the truth or nearer to the truth of what really happened (case law followed: State v. Miriam Kakun (1997) N1673).
   
2. A record of interview that is tendered without objection or by following due process, is good evidence and is open to the Court to assess and give appropriate weight to, even if the accused person or its author exercises his or her right to remain silent at the trial (case law followed: State v. John Yeon Bekeram (2011) N4298).
   
3. The two accused claimed the complainant was 'drunk' and mistakenly identified them as responsible for assaulting her but the assault on the complainant occurred at broad daylight and the complainant and witnesses there had more than 1 to 2 hours to view, recognise or identify the two accused.
   
4. The charge of grievous bodily harm with intent under section 315(a)(d) of the Criminal Code Act Chapter No. 262 against the two accused was not sustained because the prosecution failed to establish the element of intent.
   
5. The alternative charge of grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 against the two accused was sustained.
   

Cases Cited:

Ilai Bate v. The State SC1216 (2012)
John Beng v. The State [1977] PNGLR 115
Keko Aparo and Ors v. The State (1983) SC249
State v. Miriam Kakun (1997) N1673
State v. John Yeon Bekeram (2011) N4298

Counsel:

Ms Aihi, for the State
Mr Kaluwin, for the two Accused

RULING ON VERDICT

30^th May, 2016

1. ANIS AJ: The State (prosecution) presented a single indictment dated 10 March 2016, on 11 March 2016, against you two. The indictment reads in part:

JOE NGOTNGOT of TAVU NO. 3, RABAUL and EREMAS MATIUL of RABURUA, KOKOPO, EAST NEW BRITAIN PROVINCE both stand charged that they the said JOE NGOTNGOT and EREMAS MATIUL on the 14th day of December 2013, at Kabakada Village, Rabaul in Papua New Guinea with intent to do grievous bodily harm did grievous bodily harm to one MIRIAM PAPAKAT.

ALTERNATIVELY

JOE NGOTNGOT of TAVUI NO. 3, RABAUL and EREMAS MATIUL of RABURUA, KOKOPO, EAST NEW BRITAIN PROVINCE both stand charged that they the said JOE NGOTNGOT and EREMAS MATIUL on the 14th day of December 2013, at Kabakada Village, Rabaul in Papua New Guinea unlawfully did grievous bodily harm to one MIRIAM PAPAKAT.

CHARGE

2. You two are charged under section 315(a) (d) and alternatively under section 319, of the Criminal Code Act Chapter 262 (Criminal Code). The prosecution also invokes section 7 of the Criminal Code.

3. Let me set out these provisions herein:

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

...,

does any of the following things is guilty of a crime:—

(d) unlawfully wounding or doing a grievous bodily harm to a 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 seven years.

7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1) (d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

BRIEF FACTS

4. The prosecution, in presenting the indictment, relies on the following brief facts against you two. I will summarise that herein:

5. On 14 December 2013 at around 10am - 10:30am, you two with other policemen namely Michael Keleve, Bani Masat and Louis Ling went to Kabakada village. You all went there to attend to a complaint laid by another villager from the same village Ekonia Levi Pidikier (Ekonia) and his wife. The couple alleged that the complainant Miriam Papakat (Miriam) and some youths damaged their house the previous night. At Kabakada village, you Eremas Matiul held a softball bat and used it to hit the arms and legs of Miriam. You Eremas Matiul then dragged Miriam to the other policemen who also assaulted her and another suspect Jimmy Raflin (Jimmy). You Joe Ngotngot used a rubber fan belt to assault Miriam and you swore at her. You two continued to assault Miriam and Jimmy, that is, you Eremas Matiul used the softball bat and you Joe Ngotngot used the fan belt. You two and other policemen then took Miriam and Jimmy to the main road to wait for the police vehicle to arrive. There, you two continued to assault Miriam some more that is, you Eremas Matiul used the softball bat and you Joe Ngotngot used the fan belt. Miriam cried out in pain and begged you two to stop but you two did not listen to her. You two broke Miriam's right leg at that point in time. When the police vehicle arrived, you two plus the other policemen took Miriam and Jimmy to the police station. Despite Miriam's severe injuries, police detained her in the cell from 14 December 2013 to 16 December 2013. Miriam was later released on bail and she sought medical attention at the Nonga Base Hospital.

PLEA

6. You two deny the charges of grievous bodily harm with intent. You two do not deny being at the crime scene with other policemen. But you two deny assaulting Miriam, that is, as for you Joe Ngotngot, you deny that you used a fan belt to assault Miriam, and for you Eremas Matiul, you deny that you used a softball bat to assault Miriam.

7. Your trial on verdict commenced on 11, 14, 15, 16 and 17 March 2016. The Court reserved its decision on verdict on 17 March 2016.

8. This is my ruling.

MAIN ISSUE

9. The main issue as agreed by the parties is identification.

10. I note that the prosecution has the burden to prove beyond reasonable doubt the charges of grievous bodily harm with intend against you two. This also goes for the alternative charge of grievous bodily harm. If the prosecution fails to discharge this burden of proof on both charges, and the Court is also unable to enter a convict on lesser charges under assault, I will dismiss the charges and acquit you two.

EXHIBITS

11. The parties, by consent, tendered the court deposition. I accepted each of the exhibits tendered from the court deposition. I set them out herein in two tables starting from the exhibits tendered by the prosecution:

LAW - IDENTIFICATION

12. Case law has made it mandatory for a Court and in particular a National Court judge to caution himself or herself when dealing with a case where conviction is dependent upon identification.

13. I must caution myself on the dangers of accepting evidence of witnesses who have testified that they actually saw you two with a group of policemen who allegedly committed the offence. I note that even an honest witness can make mistake for various reasons including normal human error. I note that for me to seriously consider and accept a witness's evidence on point, the witness must prove himself or herself to be honest, accurate and reliable. This can of course be difficult and a judge in my view needs to consider all factors including legal, factual and also common sense or the practical aspect of the story, for example, whether the evidence make logical sense. Consideration of corroborative evidence is essential although not mandatory. Essential factors I must take into account with these include the time of the day or the lightings and the length of time each witness has had, to say or claim that he or she saw the two of you assault Miriam.

14. The case law on point is the case of John Beng v. The State [1977] PNGLR 115. The principles held therein I thought were well summarised by the Supreme Court in the case of Ilai Bate v. The State SC1216 (2012). The Supreme Court held these:

10. It is settled law as explained by the Supreme Court in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 that there is an inherent danger in convicting an accused on the basis of identification. The trial judge should by his or her reasons for decision demonstrate that that danger is recognised and heeded. This is done by administering a ‘self caution’. It is the sort of caution that a judge would give to a jury in jurisdictions that have trial by jury. In PNG we have no juries. The judge is the tribunal of fact as well as of law. So the judge is expected to caution himself or herself as a matter of self-discipline and as a means of demonstrating through his or her judgment that the principles on identification evidence have been applied.

11. The trial judge should indicate that the court is mindful of the risks involved but that if the quality of the identification evidence is good the matter should proceed to verdict; and if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. The judge’s reasons should show an awareness of the possibility that an honest witness can be mistaken and still be convincing. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

15. The principles held above are binding herein. I also adopt and apply them to this case in my consideration in addition to what I have already stated above in my judgment.

PROSECUTION'S WITNESSES

16. The prosecution called in three (3) witnesses. They are Ekonia, Miriam and Benjamin Papakat (Benjamin). Let me summarise their evidence:

• Ekonia Levi: He lodged the first complaint with police in Rabaul that his house at Kabakada village was stoned by youths. He said in the afternoon on 13 December 2013, he was with his wife Oris Levi at their house when Miriam passed by and swore at his wife. He said that evening, some youths got drunk, made noise, swore and threw rocks and things onto his house. He said they kept on doing that until about 3am the next day. He said the insults, the noise and stone or missile throwing stopped from 3am to 5am. He said from 5am the youths continued with their harassment until about 11am. He said he and his wife went to the Rabaul Police Station at around 6am that morning on 14 December 2013, and reported the matter at about 10:30am. He said he and some policemen travelled back to Kabakada village to investigate the incident. He said when they arrived the youths had all left. He said he and the policemen set out to look for the youths. He recalled the time to be around 12pm. He said he and you Eremas Matiul went over to Miriam's house. Inside the house, he said they apprehended Jimmy Raflin who was sleeping. He said they asked Jimmy about the other boys and the Jimmy said he did not know. He said they took Jimmy down and whilst walking down Jimmy ran off and tried to escape. He said he and you Eremas Matiul chased Jimmy down a short distance and apprehended him. He identified you Eremas Matiul in Court by pointing to you in the accused dock. He said he saw Miriam in the coconut patch and he went over and apprehended her. He said he asked Miriam about the incident that happened the previous night. He said Miriam denied knowledge of the incident or the youths and he said he assaulted her by slapping Miriam on her face. He said he then brought Miriam over to his house. He said at his house Bani Masat and you Joe Ngotngot were waiting there with the rest of the policemen. He identified you Joe Ngotngot in Court by pointing to you in the accused dock. He said the policemen including you two began interrogating Miriam and Jimmy about the incident last night. He called out the name of you Eremas Matiul as the one who held and used a softball bat to hit Miriam on her legs that is on her calf muscles. The prosecution asked Ekonia to describe the softball bat. He said it was grey in colour taped with a red tape. The prosecution presented a softball bat in Court and asked Ekonia to examine the bat. He identified the softball bat and said you Eremas Matiul used the said bat to assault Miriam. He said at that time of the assault on Miriam, he was standing about 6 meters away and saw what happened. He said the time was around 1pm. He said two policemen assaulted Miriam. He said the first was you Eremas Matual. He said he could not see or identify the second policeman because he was talking with some people. He said Miriam was drunk at that time. He said the police vehicle arrived after that and you all hopped on. He said you Joe Ngotngot sat in the front whilst himself, you Eremas Matiul, Miriam, Jimmy and Miriam's mother and sister sat at the back of the vehicle. He said you all drove to the station. There he said one of the policeman Jack Bemau questioned and arrested Miriam and Jimmy.
  
  • Miriam Papakat: She confirmed the argument she had with Oris on 13 December 2013. She said she argued with Oris after she heard from her sons that Oris's children chased her sons with sticks and stones that afternoon. She said Oris's people tried to assault her but she called out to her husband who came down from their house. She said they went back to their house, they cooked, ate and slept until the next morning. In the morning of 14 December 2013, she said she went to see her mother at her mother's house. She said they cooked, ate and were there when about six (6) policemen showed up at their village. She said three (3) of them came to where she was and Ekonia called out to her. She said Ekonia and his son assaulted her by punching her on her mouth using their fists. She said they pulled her down to Ekonia's house. She said the three (3) policemen just stood there when she was assaulted by Ekonia and his son. The prosecution asked Miriam where these policemen were. She said two of them were sitting inside the courtroom. She pointed in the direction of you two in the accused dock. She said Ekonia and his son left her with the police. She said the policemen started assaulting her at Ekonia's house. She said she was assaulted by you two and two (2) other policemen. She said one of you namely Eremas Matiul used a softball bat to assault her whilst you namely Joe Ngotngot used a fan belt to assault her. She said she was able to recognise you two because it was during the day. Secondly, she said the assault went on for about 1 hour before the vehicle arrived which was why she said she could recognise you two. She said you Eremas Matiul used a softball bat to assault her on her two arms and her calf muscles. The prosecution showed Miriam the exhibited softball bat in Court. She said you Eremas Matiul used the said bat to assault her. She said you Eremas Matiul continued to assault her with the bat at the roadside. She said at the roadside, you Joe Ngotngot just stood there whilst you Eremas Matiul assaulted her with the softball bat. She said the police vehicle arrived and they all hopped on, that is, herself, you two, the other policemen, Jimmy, her mother and sister. She said they arrived at the police station. She said in the vehicle, the police assaulted Jimmy and not her. She said when they arrived at the Rabaul Police Station she could not walk out of the vehicle as her right leg was already broken. She said her mother helped her into the police station. She said when she was inside the police station, you namely Joe Ngotngot walked in and started assaulting her with your hands. She said you Joe Ngotngot also swore at her. She said after that you Joe Ngotngot left the station. She said the police tried to put her in the men's cell but she said one policeman whom she could not identify told her to come back. She said police kept her at the station. She said policeman Jack Bemau asked her questions on whether she knew the youths who were said to have stoned Ekonia's house. She said she kept on telling him that she did not know these youths or their names. She said police left her in the police cell until on Monday. She said she did not receive treatment to her injuries during her time in the police cell. She said on Monday her husband Benjamin came and bailed her out with K100. She said from there they went to Nonga Base Hospital for treatment.
    
  • Benjamin Papakat: He is Miriam's husband. He said he was there at Kabakada village when the assault occurred on 14 December 2013. He said he observed the assault from his mother in-law's house. He said he was shocked to see policemen assaulting his wife. He said the first person to assault his wife was Ekonia. He said Ekonia punched Miriam on her back. He said police also assaulted his wife and he pointed in Court in the direction of you two and called out your names. He said you Joe Ngotngot used a fan belt to assault Miriam whilst you Eremas Matiul used a softball bat to assault her. He said he was standing six (6) meters away when he observed you two assaulting Miriam. He said it was around 10am in the morning. He said you Eremas Matiul held onto the collar of Miriam's shirt whilst you assaulted her with a softball bat. He said you Eremas Matiul led Miriam up to the main road. He said at the main road, you Eremas Matiul kept on assaulting Miriam with the softball bat. He said the distance from where he was observing and the main road, was about 10 to 12 meters. He said you Joe Ngotngot was also standing there next to you Eremas Matiul. He said police warned him and the others to stay clear from them at the roadside. He said the police vehicle arrived about 1 hour later. He said they took Miriam in the vehicle. He said on 16 December 2013, he travelled to Rabaul Police Station and bailed Miriam. He said from there he and Miriam went straight to Nonga Base Hospital to get treatment to Miriam's injuries. He said he knew you two because he said you two were their policemen based in Rabaul.
    

DEFENCE'S WITNESSES

17. The defence called two (2) witnesses. They are you Eremas Matiul and Oris Levi. I will summarise their evidence herein:

• Eremas Matiul: You said you recalled the incident. You said when you arrived at Kabakada village on 14 December 2013, you all walked down the coconut patch. You said between Miriam and Levi's house you all broke up into two groups. You said Ekonia showed you the road to Miriam's house. You said you went inside Miriam's house and saw Jimmy asleep there. You said you held and cautioned Jimmy not to run away. You said you were shocked when Jimmy ran off from you. You said you chased and captured Jimmy from a fair distance. You said Ekonia arrived and threw punches at Jimmy. You said you tried to stop him. You said you checked the waste bag Jimmy was carrying and found a 500ml coke container. You said you opened the lid and smelled its content and it smelled like homebrew. You said you took Jimmy down to Ekonia's house. At Ekonia's house, you said you did not see Joe Ngotngot because you said he was with the other group. You said Ekonia and his relatives left you with Jimmy and went to look for Miriam. You said Ekonia and his relatives brought back Miriam. You said no policemen were with them when they arrived. You said Joe Ngotngot arrived after they had left Miriam where you were which was at Ekonia's house. You said Joe Ngotgnot arrived with another policeman Michael Keleve. You said at that time you were holding the suspect Jimmy with both hands. You said you observed that Miriam had been assaulted and she looked drunk. You said you all did not waste time, you took them up to the road. You said you assaulted Miriam once in that you slapped her. You denied ever using a softball bat to assault Miriam.
  
• Oris Levi: She is the wife of Ekonia. She said she recalled the incident of 13 December 2013. She said her sister's children threw stones at a mango tree belonging to Miriam. She said she returned from the market and when she heard about it, she got cross to the children. She said at that moment Miriam walked past their house. She said Miriam said some insulting words and her children over heard Miriam and told her. She said they tried to apprehend Miriam and question her about what she had said. She said Miriam started to get cross from then on. She said that evening, she heard Miriam, her husband and some other men consume alcohol at Miriam's mother's house. She said from there, they threw stones and sticks towards her house. She said she could tell it was Miriam because she heard her voice in the crowd and she said she could hear Miriam swearing at her. She said the disturbance continued from 7 pm till the next day. She said next day, she went and put in a complaint at the Rabaul Police Station. She said her husband was at his village at Essesem or "SSM" at that time. She said she called her husband from the police station to come over. She said her husband came over. She said she waited at the police station until the police returned with Miriam and the others.
  

ASSESSMENT OF EVIDENCE

18. How will I approach the evidence?

19. I will assess the evidence in totality following the second method as highlighted by the late Justice Akuram in the case of State v. Miriam Kakun (1997) N1673. I read the relevant part where his Honour held herein:

I therefore had to look carefully at her story and that of the State witnesses. There are two ways of assessing the totality of the evidence. First, I can look at the State witnesses' evidence together but separately from that of the accused to see which version is the correct one. Secondly, I can look at all the evidence of both State and defence's together and in doing so, to find the truth or nearer the truth of what really happened. I prefer the second method for two reasons. First reason is that the first method or approach would create a distorted picture of the total evidence available. Some evidence from either side may not be truthful and I may put too much weight to it where it is not due. Second reason is that the issue before the Court is that of accused "intending to cause grievous bodily harm to deceased when she stabbed her". To find intention, I must infer from all the facts of both State and Defence witnesses to see whether there was such an intention present.

(Underlining is mine)

20. I will consider the evidence of both the prosecution and the defence together. This is because I find, as I will discuss in my judgment, evidence adduced from both sides relevant in ascertaining the material facts and issues in the matter. I will start-off with the least credible evidence and finish off with credible evidence as we go down herein.

21. I refer to the sworn evidence of you Eremas Matiul. Unfortunately, I must say that I find you Eeremas Matiul to be the least credible witness I have observed at this trial. Let me summarise what I have to say:

• you said you did not recall the incident in the record of interview which is Exhibit P 9 herein. But at the trial, you gave sworn evidence recalling the incident of 14 December 2013.
  
• Let me read Question 34 of the record of interview and your response herein:
  

Q34. Do you have any knowledge of this incident where you and other policemen went to Kabakada village and picked up a woman and a man and bashed them and took them to Rabaul police station on Saturday 14th December 2013?

ANS: No idea at all.
(Underlining mine)

I note that an accused person can choose if he or she wishes to answer a question or not, in a record of interview. If the accused chooses not to answer, he may use phrases for example like "I exercise my right to remain silent" or "I have nothing to say" or "pass" or "I refuse to answer" or "I reserve my right until I talk to my lawyer."

However, in this case, you said you had no idea at all about the incident that occurred on 14 December 2013. That was taken down as your answer at that time and is now evidence before this Court.

• The next damning statement, in my opinion, is your response to Question 35 in the record of interview. I set that out herein:
  

Q35. All these you have told me and I have typed it down on paper. Are you telling me the truth that you have no knowledge of this incident where you and other policemen went and broke a woman's leg at Kabakada village?

ANS: Yes I am telling you the truth.
(Underlining mine)

• You already stated that it was the truth that you had no knowledge of the incident. Had your story remained the same, this Court would have given due regard to your credibility and evidence. However, at the trial, you gave what appears to be a detailed account of the incident and of your involvement therein.
  
• During cross-examination, the prosecution asked you on point and you said that at the time when police interviewed you, you could not remember but that you could remember the incident now or at the trial. You also said that it was three (3) years ago, which was why you said you could not remember when you were interviewed. In my opinion, the only way I can be convinced and believe the explanation you gave is if there is evidence to show that you do suffer from memory loss or memory lapse, and I would expect that to come from the defence from evidence of an expert. There is no evidence of that put before me by you. All I have is this explanation you gave and your two inconsistent evidence, the first given in the record of interview and the second which is your sworn evidence. I also note that you have not alleged memory loss so that does not oblige the prosecution to disprove that. You simply say that you forgot the incident earlier on but now you could recall it.
  

22. I now turn to the evidence of Oris. She is Ekonia's wife. Oris was at her house in the evening of 13 December 2013. She travelled early the next day on 14 December 2013 to lodge complaint with the police and she remained at the police station throughout that day.

23. I find Oris's evidence to be vague and at times confusing. I think she tried once to give false evidence which I will discuss herein. I rank her evidence credibility and reliability as low. Let me discuss her sworn evidence herein:

• Oris said she heard Miriam and her husband drinking with youths that evening at Miriam's mother's house. She said she knew Miriam was drinking because she could hear her voice amongst the people who were drinking there that evening. In other words, she only heard and said she recognised Miriam's voice and she concluded that Miriam was drinking with the youths at her mother's house. Both Miriam and her husband Benjamin gave sworn evidence denying that they drank beer or were with the youths who threw stones at Oris's house.
  
• In examination in chief, Oris said she went early to Rabaul to lodge a complaint. She did not mention travelling to Rabaul with her husband. She said after she lodged her complaint, police told her to wait at the police station and she waited there. The Defence counsel asked Oris whether her husband had accompanied her to the police station. She said "He was at his village at "Essessem" or "SSM". She said she later called him and he came over from his village. But during cross-examination, when the prosecution asked her whether she and her husband reported the matter together to the police, she answered "Yes". I note that her husband Ekonia gave sworn evidence for the prosecution that he was at Kabakada village the previous night on 13 December 2013 and in the morning on 14 December 2013 where he said he and his wife Oris travelled together to Rabaul to report the incident. So for whatever reason Oris has decided to give this contradictory evidence, one thing for sure is that she has discredited her own testimony and I am therefore bound to treat her evidence with suspicion.
  
• I also note that her husband Ekonia did not corroborate her story on point where Oris said she heard Miriam and her husband drinking with the youths. Ekonia also did not identify which house the noise was coming from or which house the youths were drinking in. Ekonia only mentioned that some youths got drunk and threw stones at their house, swore at them and made noise all night.
  
• I do not trust this witness's evidence. I find Oris to be an untruthful witness so I will give little or no weight to her sworn evidence.
  

24. I turn to you Joe Ngotngot. You have chosen to remain silent and not to give sworn evidence at the trial. You have exercised your right under the Constitution and I take note of that.

25. I will instead look at what you have stated in your record of interview that is Exhibit P8, which is in evidence before the Court. I note that the prosecution tendered your record of interview without objection. You voluntarily signed it and I am satisfied that all the pre-conditions for administering a record of interview were complied with in your case. I am satisfied that the evidence is properly before the Court for consideration despite the fact that you have exercised your right to remain silent at the trial [see the case: State v. John Yeon Bekeram (2011) N4298].

26. I find your story in the record of interview to be partially correct because some of what you have stated were corroborated by evidence given by you Eremas Matiul and from the prosecution's evidence. The material facts you deny therein is that you did not use a fan belt to assault Miriam either at Ekonia's house or on the main road at Kabakada village. To assess the credibility of your evidence, let me discuss what you have stated in the record of interview:

• you said you recalled the incident of 14 December 2013 and admit attending to it that day at Kabakada village with other policemen including you Eremas Matiul.
  
• your description of what you saw in response to Question 24 in your record of interview is similar to what you Eremas Matiul has stated. This is also corroborated with the prosecution's evidence namely the evidence of Ekonia. Let me set-out what you said herein:
  

"Mipela bihainim rot igo na ol complainant itok olsem sampela ol mangi wok long drink JJ Yawa (Home brew beer) istap aninit long lain cocoa so mipela banisim em ol igo daon. Mipela bihainim dispela grup igo antap long maunten. Mi lukluk igo daon em mitupela lukim Eremas Matiul holim wanpela bilong ol dispela spak man na ol narapela ronawei. Mitupla ron ikam daon na displa spak man struggle wantaim Eremas Matiul na em lusim han long em na dispela man ronawei. Mi na Michael Keleve raunim sait blong maunten igo na kamap long haus bilong meri ya Miriam Papakat. Taim mitupela kamap long haus em nogat manmeri istap. Olgeta ronim dispela spak man igo daon long maunten. Mitupela Michael Keleve ibihainim ol igo daon na kamap long wanpela haus ol burukim long em na complaint ikamap. Long hap em mitupela lukim olsem ol ples lain holim dispela spakman na meri ya pinis na wok lon paitim em istap."

The translated version: We followed the road up and the complainants said some youths were drinking homebrew beer - JJ Yawa (Homebrew beer) under the cocoa trees so we went and surrounded the area. The youths saw us and they all ran away. We followed a group that ran up the mountain. I was with Michael Keleve and we climbed the mountain to the top and when we looked down we saw Eremas Matiul apprehended one of these drunkards. Both of us ran down the mountain and this drunkard struggled with Eremas Matiul and ran away. Michael Keleve and I went around the mountain and went to Miriam Papakat's house. When we arrived at the house there was nobody there. All of them chased this drunkard down the mountain. Michael Keleve and I followed them down and came to a house where it was damaged and the complainants went and complained. From there we saw that the villagers already apprehended this drunkard and the woman and were assaulting both of them.

• I note that you have denied in the record of interview that you used a fan belt to assault Miriam, or that you watched as Eremas assaulted Miriam with a softball bat. That part of your evidence is contrary to the sworn evidence given by the State witnesses.
  
• There is a piece of evidence you stated therein which I have found to be crucial, a partial admission and credible and I also note that it corroborates with the prosecution's evidence. It is contained in your response to Question 49 of your record of interview. I set that out herein:
  

Q49. Pasin yupela mekim long paitim dispela meri long ples yet na taim yupela wokabaut long liklik rot igo long main rot em yupela paitim em yet igo kamap long main rot. Na long main rot em yupela continue long paitim en inap yupela burukim right leg bun bilong em. Dispela em isoim olsem yupela igat intention long bagarapim dispela meri na yupela mekim olsem, Bai yu tok wanem long dispela?

Ans: Em rong bilong ol dispela members husait paitim em long rot. Mi Kam bihain bikos mi wok long assessim ol damages long haus ibagarap.

Translated version: The manner you assaulted that woman at the village, on track leading out to the main road, at the main road and continued till you broke her right leg. This shows that you have the intention to injure that woman. What have you got to say to this?

Ans: The members were wrong to assault her on the main road. I went later because I was assessing the damages done to the house.
(Underlining is mine)

27. I find your last statement to the interviewer damning. You clearly said therein that members of your team assaulted Miriam on the main road. Your team members, according to your answer to Question 20 in the record of interview, were the two of you, Michael Keleve, Bani Masat and Luis Ling. You said Luis was the driver and there were two more others whom you could not recall their names. Because you Joe Ngotngot chose not to give sworn evidence, this evidence is good evidence and it contradicts what you Eremas Matiul has stated on point. And as far as all the evidence is concerned regarding whether Miriam was assaulted on the road side, you Joe Ngotngot supports the prosecution's case on point whereas you Eremas Matiul is the only person who claims that there was no second assault on Miriam on the roadside. Given the lack of credibility in the evidence of you Eremas Matiul, there seems to be strong evidence now also confirming the assault on Miriam on the main road by policemen.

28. I refer to Miriam's sworn evidence. I find her evidence credible, reliable and corroborated in relation to the material facts and the main issue.

29. Let me discuss her sworn evidence herein:

• She confirmed that she argued with Ekonia's wife in the afternoon of 13 December 2013. But she denied that she continued arguing with Oris that evening or drank with the youths. She denied knowing the youths or was aware of what they had been doing that night. I note that she maintained that denial right throughout the incident and at the police station. She said they cooked and ate that evening at her house and she slept until the next morning. She said next morning she went down over to her mother's house and remained there until the police arrived and assaulted her and took her over to the Rabaul Police Station.
  
• Her evidence on her whereabouts before her alleged assault conflicts with that of Ekonia's who had given evidence for the prosecution. I must add that Ekonia's evidence of Miriam before the police allegedly assaulted her at Ekonia's house and on the main road appears consistent with the evidence given by you Eremas Matiul in your sworn evidence and you Joe Ngotngot from what you have stated in the record of interview. But I must remind myself on the lack of credibility of you Eremas Matiul and your story. You Eremas Matiul could have easily copied that from what you Joe Ngotngot has stated in your record of interview or from what Ekonia has stated in his sworn evidence in Court. I note that you Eremas Matiul were present and were listening in Court when the prosecution presented its evidence.
  
• But Miriam's evidence regarding the alleged actual assault on her at Ekonia's house and on the road are consistent with Ekonia's evidence and evidence given by Benjamin which I will discuss later below.
  
• Miriam said it was daytime at around 12noon when the assault on her started. She said she was assaulted by you two namely you Joe Ngotngot using a fan belt and by you Eremas Matiul using a soft ball bat. She said others also assaulted her but not as serious as the two of you because you two used weapons to assault her with. She said the assaults by you two on her continued for about one (1) hour or so, that is, from Ekonia's house and on the road whilst waiting for the police vehicle to arrive. She said she was able to recognise you two because it was daytime and because of the long period taken to assault her. The sworn evidence of Ekonia and Benjamin corroborated her evidence on point although I note that Miriam's evidence is direct evidence and did not require corroboration. I note that you two deny assaulting Miriam in the manner described by the prosecution. I note that you Eeremas Matiul did admit slapping Miriam from the time when she was apprehended but you deny assaulting her using a softball bat at Ekonia's house or on the main road.
  
• During the trial, your counsel tendered Exhibits D1 and D2. Counsel argued that Miriam and Benjamin gave prior inconsistent statements, that is, that they did not name you two earlier but named other persons but now you two were charged and not these other persons who were named earlier. In my view, evidence adduced at the trial shows that Miriam did not deny that she was assaulted by other people. Miriam responded directly to the question and said she named you two because you two severely beat her using weapons namely a fan belt and a softball bat whereas others did not. Miriam also said she did take actions on others like Ekonia whom she said she had sued in civil proceedings and received compensation from him regarding his involvement in the incident. She said she filed this complaint against you two because she said she wants you two punished, for what you two did to her. She denied that she was being selective. When I look at Exhibits D1 and D2, I think the defences' argument is shallow because Miriam did state therein that she was assaulted by policemen after she was assaulted by Ekonia and the others. I therefore find this argument futile.
  

30. I wish to discuss the allegation that Miriam had been drinking or was drunk. The allegation was firstly made by Oris. I have already found Oris's evidence to have very little credibility. Even then, I note that Oris never actually saw Miriam drinking with the youths but only made an assumption based on what she said she heard that night. Oris's evidence on point is therefore baseless given Miriam's direct evidence denying that she was drunk that night or consumed alcohol with the youths. The next person who gave evidence to say that Miriam was drunk was Ekonia. He made that claim after he apprehended Miriam and assaulted her with other men. He did not give any other evidence to support his allegation or claim that Miriam was drunk. If he was counting on the evidence of his wife Oris, I have already ruled that out. There does not seem to be any solid link or connection between youths drinking the previous night to Miriam or to Miriam being drunk the next day at around 12noon. I am convinced that the allegations that Miriam was drunk seem have been made up or are false. I am of the view that Ekonia has made this story up, that is, of Miriam being drunk, to justify why he and others assaulted her. For Oris, well, Miriam swore at her the previous day so her evidence could be tainted on that basis as well. Or she may want to protect her husband in relation to her husband's assault on Miriam and therefore told a lie. This Court has already found Oris giving contradictory evidence above. The other person who has alleged that Miriam was drunk is you Eremas Matiul. I have already ruled your evidence as not credible. I also find that you are telling a lie to protect yourself and you Joe Ngotngot.

31. One important factor is the distance between Miriam's house, Ekonia's house and Miriam's mother's house. In cross-examination, Miriam said her house was about a hundred meters away. It was clarified that Miriam's mother's house and Ekonia's house shared the same boundary. I ask myself, if the assault was alleged to have come from Miriam's mother's house, why didn't Ekonia and Oris lay the complaint against Miriam's mother because that was where the youths were alleged to have been drinking and disturbing them or that noises were coming from that direction.

32. I turn to the sworn evidence of Benjamin. He gave evidence for the prosecution. I find this witness's evidence credible on the material facts alleged by the prosecution. I discuss it herein:

• He denied he drank with any youths all night at their house on 13 December 2013. He said he went to sleep and did not know what happened during that night. He admits Jimmy had been drinking all night. He also admits that that night people stoned Ekonia's house but he did not know who and he denied that it came from his house.
  
• In regard to the material alleged facts, he said he was at his mother in-law's house when police assaulted his wife at Ekonia's house. He said he was 6 meters away and witnessed the incident.
  
• He said other policemen were there as well but he mentioned the names of you two because he saw you Joe Ngotngot using a fan belt to assault Miriam and you Eremas Matiul using a softball bat to assault Miriam. He said from there police took Miriam and Jimmy to the main road. He said you Eremas Matiul held Miriam on her shirt collar and you assaulted her on the side of the main road with the softball bat. He said you Joe Ngotngot did nothing and stood next to them on the side of the road. He said he was observing you two at the road from about 10 to 12 meters away. He said about 1 hour later the police vehicle arrived and you two and others including Miriam left for Rabaul. There is no evidence in Court that disputes what Benjamin has stated on point. His evidence of where he was at the time immediately before the assault and his evidence of what he said he saw at the two stages of assaults on Miriam was not challenged. Benjamin's sworn evidence on point is supported with the sworn evidence of both Ekonia and Miriam. I note that Ekonia is an independent witness in the matter.
  
• Your counsel in cross-examination tried to impress upon the Court that Benjamin drank alcohol all night and therefore he mistakenly identified you two as responsible for assaulting Miriam. He denied all questions in that regard. And I note that the only evidence which mentions Benjamin's name was given by Oris. But Oris said she only heard Miriam's voice and she assumed that Benjamin was with her drinking all night. Miriam and Benjamin both denied that they were at Miriam's mother's house which was where Oris said the noise was coming from.
  
• I cannot find any independent or direct evidence which states that Benjamin was drunk. Besides, the term "drunk" I think was misapplied by the parties or the witnesses at the trial. What does one mean when he says this person was "drunk"? The term is used generally to indicate or suggest that someone has consumed too much alcohol. But it is a general term and without specific evidence to indicate the level of alcohol someone has actually consumed, in my opinion, this Court cannot simply make assumptions based on use of descriptive words by witnesses in Court.
  
• Consequently, what this Court has is the sworn evidence of Benjamin of what he saw and his denial that he was drunk, and on the other hand, mere allegations over the bar table by the defence that Benjamin was drunk at the material time (see case of Keko Aparo and Ors v. The State (1983) SC249).
  

33. I turn to the sworn evidence of Ekonia. He is an independent witness for the prosecution. Regardless of that, I find Ekonia to be a credible and reliable witness. In my opinion, he gave an honest account of what he saw, did, or thought, and I do not think he invented anything new or tried to, for example, bend his recollection to suit himself or anyone. Let me discuss his evidence herein:

• His sworn evidence corroborates the evidence of Oris and Miriam regarding the incident that afternoon on 13 December 2013.
  
• His sworn evidence did not state where the noise, stone throwing, swearing of the youths came from that night on 13 December 2013. He did not also identify Miriam and Benjamin as persons responsible for the disturbance. He did not say Miriam and Benjamin were drinking with the youths that evening. Ekonia simple states that that evening, they were surprised to see some boys nearby who were swearing towards his house and throwing things or stones at his house including a home brew container, and he said the disturbance continued until 3am the next morning. He said the noise stopped from 3am to 5am and then it continued from 5am to about 11am on 14 December 2013.
  
• Ekonia identified you two in Court as policemen who were present at Kabakada vilage on 14 December 2013.
  
• His evidence corroborates the evidence contained in the record of interview of you Joe Ngotngot, of how Miriam and Jimmy were apprehended and brought to his house.
  
• He gave sworn evidence that he saw you Joe Ngotngot and Bani Masat interrogate Miriam after he had handed her over to you two and other policemen at his house. He identified you Eremas Matiul and said you used a softball bat to assault Miriam at his house.
  
• In cross-examination, Ekonia gave an inconsistent evidence regarding you Joe Ngotngot but this was not deliberate because he later clarified that in re-examination. Let me explain: Your lawyer tried establish that the alleged assault occurred at Elouka's house and that when you Joe Ngotngot arrived at Ekonia's house, there was only interrogation and no assaults on Miriam and Jimmy. But I think either counsel did not ask the question to Ekonia clearly or whether Ekonia misunderstood the question. Either way I must say that I myself at that time did not follow the counsel's questions in that regard. But Ekonia firstly clarified the point when he said that when he and you Eremas Matiul apprehended Jimmy, the three of you all went over to Elouka's house. But Ekonia said he left you Eremas Matiul and Jimmy and he went over to the coconut patch to apprehend Miriam. When counsel put to Ekonia that Ekonia brought Miriam back to Elouka's house, Ekonia said no and said he brought Miriam to his house. Ekonia said when he arrived at his house, all the policemen were already there including you two and Jimmy. Your lawyer then asked Ekonia whether there was only interrogation and no assaults and Ekonia answered "yes". Your lawyer did not elaborate but stopped there. In my opinion, counsel should have sought clarity to the answer because Ekonia had already stated clearly earlier in examination in chief that he saw you Joe Ngotngot and Bani interrogating Miriam at his house and also that you Eremas Matiul assaulting Miriam with a soft ball bat at his house. In re-examination, Ekonia's position was clarified because Ms Aihi asked Ekonia on point and he confirmed his evidence that you Eremas Matiul assaulted Miriam using a softball bat at his house. In regard to the other policeman whom Ekonia said also assaulted Miriam at his house, Ekonia confirmed in re-examination that he did not see or identify that other policeman because he said he was talking with some people. I note that Ekonia did not expressly say in his evidence that you Joe Ngotngot also physically assaulted Miriam at his house or on the road. His evidence against you Joe Ngotngot was that whilst you Eremas Matiul was using a softball bat to assault Miriam you Joe Ngotngot was also close by interrogating Miriam.
  

FINDINGS - FACTS

34. I will now focus my findings on the material facts in relation to the issue of identification.

35. Let me summarise my findings herein:

(1) At 6am on 14 December 2013, Ekonia and his wife Oris left their house at Kabakada village. They travelled to Rabaul to lay a complaint at the police station concerning a disturbance that had occurred the previous night on their premises at Kabakada. They registered their complaint with the police at about 10:30am. From there, the police told Oris to wait at the police station. You two, together with others namely Michael Keleve, Bani Masat, Luis Ling and Ekonia travelled to Kabakada to investigate the incident. The six (6) of you arrived at Kabakada at about 11:30am. Luis Ling dropped you two and the others at Kabakada and drove off.

(2) From there, you Eremas Matiul and Ekonia went to check Miriam's house. You Eremas Matiul and Ekonia apprehended Jimmy who was sleeping inside Miriam's house. There was no one else there at Miriam's house at that time apart from Jimmy. Jimmy tried to escape but you Eremas Matiul and Ekonia recaptured him. You Eremas Matiul and Ekonia brought Jimmy down to Elouka's house. At Elouka's house, Ekonia left you Eremas Matiul with Jimmy and he went to apprehend Miriam. Ekonia brought Miriam back to his house. When Ekonia arrived with Miriam at his house, you Eremas Matiul had already brought Jimmy over from Elouka's house, and the rest of the policemen were already there at Ekonia's house including you Joe Ngotngot. Ekonia handed Miriam over to you two and the other policemen at his house.

(3) At Ekonia's house, three (3) witnesses saw the assault on Miriam. Miriam herself identified you Joe Ngotngot of using a fan belt to assault her. Miriam herself identified you Eremas Matiul of using a softball bat to assault her. The said softball bat was exhibited and identified as the one usually kept in the police vehicle that you two and the others had used at that time. The prosecution's witnesses have identified the softball bat in Court as the same bat you Eremas Matiul used to assault Miriam with on 14 December 2013. Benjamin, Miriam's husband stood 6 meters away and witnessed the assault and he identified you two and said the same thing in relation to how Miriam was assaulted. Ekonia was also present and said he only saw you Eremas assaulting Miriam with the softball bat. Ekonia saw another policeman also assaulting Miriam at the same time but he did not see who he was because he was talking to some people.

(4) From Ekonia's house, you two and the other policemen together with Miriam and Jimmy walked over to the main road to wait for the vehicle to arrive. At the side of the road you Joe Ngotngot used the same fan belt to assault Miriam and you Eremas Matiul used the same softball bat to assault Miriam. The whole incident and waiting time took more than one (1) hour.

(5) All these happened at broad-daylight from 11:30am to about 1pm or 2pm in the afternoon. You two including Miriam travelled together in the same vehicle to the police station. Miriam had all these opportunities to recognise and identify you two as the assailants. Benjamin also had all the time and opportunity to identify you two as the assailants during the time of the assaults on Miriam and Jimmy at Kabakada village. Ekonia travelled with you two, to and from the police station. He teamed up with you two and other policemen at Kabakada to look for suspects there so there is no doubt in my mind that his evidence identifying the you two is accurate.

(6) Miriam and Benjamin were not drunk at the material time. I find no credible evidence to show that Miriam and Benjamin were drunk or were with the youths that drank that night and made noise and stoned Ekonia's house. Both Miriam and Benjamin denied that. Oris's evidence of Miriam being drunk and Ekonia's evidence on point are speculative and baseless. The sworn evidence given by you Eremas Matiul lacks credibility. In your record of interview, you said it was true that you could not recall a single event of the incident. I note that you Eremas Matiul were in Court listening all along whilst the prosecution witnesses all gave their evidence. This could explain why you suddenly was able to recall the incident and decided to give sworn evidence. I find that you Eremas Matiul gave false evidence when you said Miriam was drunk. On this point, let me ask myself this: Assuming Miriam and Bejamin consumed alcohol themselves or were with the youths at 7pm the previous night as alleged by Oris, where is the credible evidence that the couple drank continuously or non-stop from 7pm on 13 December 2013 till about 11:30am on 14 December 2013 the next day? That would be about 16 hours of drinking if I am to accept the claim by the defence on this point. This is obviously an incredible allegation by the defence. And also very important is the fact that the assault happened for more than one (1) hour. It did not take like 1 minute or 5 minutes or 10 minutes. Miriam and the policemen waited at the road side for a very long time probably another hour before the vehicle arrived. Then Miriam and you two all jumped into the same vehicle and went to the police station. Miriam had at best more than 2 hours or so to see and recognise you two as the assailants. Ekonia corroborated Miriam's evidence that you Eremas Matiul used a softball bat to assault her at Ekonia's house. I ask myself this second question: If Miriam was drunk, how come Ekonia who is an independent witness gave sworn evidence which corroborated what she has stated? And you Joe Ngotngot admitted in your record of interview that policemen assaulted Miriam on the side of the road whilst waiting for the police car to arrive. Again, if Miriam was drunk, how is it that you Joe Ngotngot corroborated her sworn evidence that she was assaulted on the side of the main road at Kabakada? With the strong corroborative evidence, it then becomes immaterial whether Miriam was sober or not at that time, that is, despite my findings that Miriam was not 'drunk'. Miriam's evidence is solid.

(7) I find that Miriam suffered serious injuries to all parts of her body. You two assaulted her on her arms, her back, on her legs and on her calf muscles with the use of the fan belt and the softball bat. Medical report tendered showed she suffered swellings from her head down to her toes. I note no evidence of any detailed medical examination conducted on Miriam so this Court does not know for sure that Miriam suffered serious internal injuries. There is probability for such injuries but this cannot be confirmed and I will not speculate. But I am satisfied firstly that she suffered severe external injuries or bruisers to her body. She suffered swellings all over her body, which is linked to the weapons that were used by you two on her. Secondly, medical examination confirmed she suffered swelling on her right ankle. This report, together with the photograph of Miriam's right leg in plaster of Paris, indicates that her right ankle could have been broken or dislocated. I do not find in fact that her right leg was broken. Miriam's own medical report tendered in Court did not state anywhere therein that her right leg was broken. To conclude that Miriam's right leg was broken without proper evidence would, in my view do injustice to this case. But the description in the medical report fits and I will accept for this purpose that her right ankle was twisted, dislocated or badly damaged. And I reach such a conclusion because Miriam had to wear a plaster of Paris and medical report showed serious swelling to her right ankle, which in my view meant that the injury to her right ankle was serious to warrant such attention or treatment.

FINDING - IDENTIFICATION

36. I am satisfied that the prosecution has proven beyond reasonable doubt that you two assaulted Miriam at broad daylight at Kabakada village in Rabaul on 14 December 2013.

ELEMENTS OF GRIEVOUS BODILY HARM WITH INTENT

37. Let me begin by reading section 315(a) (d) herein:

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

...,

does any of the following things is guilty of a crime:—

(d) unlawfully wounding or doing a grievous bodily harm to a person; or

(Underlining is mine)

38. I have identified five (5) elements herein in relation to offences committed under section 315(a) (d). They are:

• with intent(1);
• to maim, disfigure, or disable a person (2);
• by unlawfully(3):

(i) wounding that person(4); or

(ii) doing grievous bodily harm to that person(5).

(Numbering is mine)

39. I note that elements (4) and (5) are optional.

ABSENCE OF INTENT

40. I am not satisfied that the prosecution has proven beyond reasonable doubt the element of intent for the charge of grievous bodily harm with intent under section 315(a)(d) of the Criminal Code.

41. Evidence showed that the reason why you two assaulted Miriam was to get Miriam to reveal the names of the youths whom you two had alleged Miriam knew. Evidence showed that when she denied knowledge of the youths, she was assaulted not just by you two but also by Ekonia and others. I also note that the investigating officer at the police station also asked Miriam concerning the youths. Evidence showed that you two have decided at that time it seems that the best way to extract information from Miriam was to inflict pain on her.

42. With the absence of the element of 'intent' which is mandatory for an offence under section 315(a)(d), it is sufficient for me and I rule now that I am not satisfied that the prosecution has established the charge of grievous bodily harm with intent.

ALTERNATIVE CHARGE - GRIEVOUS BODILY HARM

43. The alternative charge that is laid against you two by the prosecution is grievous bodily harm under section 319 of the Criminal Code.

44. The term grievous bodily harm is defined under section 1 of the Criminal Code. It reads:

"grievous bodily harm" means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health;

(Underlining is mine)

45. It is not difficult to see the elements of grievous bodily harm from reading section 1 of the Criminal Code. I set them out herein:

• any bodily injury(1);
• that endangers or likely to endanger life(2); or
• cause or is likely to cause permanent injury to health(3).
  

(Numbering is mine)

46. The second and third elements are optional meaning the prosecution can choose either one of them or both. But the first element that is 'bodily injury' is mandatory.

47. In relation to the present case, I find that the prosecution has established beyond reasonable doubt the first element, that is, I find that Miriam suffered bodily injuries from the assault by you two on her at Kabakada village on 14 December 2013. I do not find evidence of the second element existing in the present case, that is, I do not consider the assault on Miriam life threatening. However, I do find that the prosecution has proven beyond reasonable doubt the third element, which is that the bodily injuries Miriam sustained are likely to cause permanent injuries to her health. Let me explain: There is no real contest to the actual injuries including injuries to Miriam's right ankle. I refer firstly to Exhibit P11. Exhibit P11 is a standard Police Request for Medical Examination dated 18 December 2013, which the police issued soon after the incident to the Nonga Base Hospital to examine Miriam. Under section REASON FOR EXAMINATION it states and I read "Sustained Serious Injuries". I find that Exhibits P10, P12, P13, P14 and P15 also corroborate Miriam's injuries. These exhibits have all been tendered by consent. I note that I have ruled out that Miriam suffered a broken leg because of insufficient evidence. But I have also found medical evidence which showed severe swelling on Miriam's right ankle. That may very well indicate that she suffered a broken right ankle but the prosecution fell short of proving that the ankle was broken. However, the medical evidence plus photographic evidence of Miriam wearing a plaster of Paris fixed to her right leg confirms that the injury to her right ankle was severe or serious. There were black markings all over her back which indicates that she suffered both external and possible internal injuries. Medical report also states that both her calf muscles showed soft tissues, which I take to mean that she also suffered serious internal injuries to her calf muscles. All these therefore go to show that Miriam's bodily injury has caused or is likely to cause permanent injury to her health.

48. Because I have now established that the prosecution has proven elements 1 and 3, I find that the prosecution has proven beyond reasonable doubt that Miriam suffered grievous bodily harm to her body.

49. That being the case, I will now go back and look at the charge of grievous bodily harm. Section 319 reads:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
(Underlining is mine)

50. The elements for the charge of grievous bodily harm under section 319 of the Criminal Code are:

• person(1);
• who unlawfully(2);
• does grievous bodily harm(3);
• to another(4)

(Numbering is mine)

51. The prosecution must prove all four (4) elements beyond reasonable doubt for this Court to sustain the charge of grievous bodily harm.

52. In the present case, I have already identified you two as persons responsible so the prosecution has proven the first element. You two did not raise any defence in law to justify your actions. I find nothing lawful about your actions on the complainant Miriam. This Court therefore finds both of your actions unlawful. In regard to the third element, I have already identified the elements of grievous bodily harm above in my judgment and ruled that Miriam's injuries qualified therein. In regard to the fourth element, Miriam is the person who suffered grievous bodily harm at the hands of you two.

SECTION 7

53. The prosecution invokes section 7 of the Criminal Code.

54. I am also satisfied beyond reasonable doubt that you two also aided and abided each other in the commission of the alternative offence of grievous bodily harm on Miriam.

SUMMARY

55. Firstly, I am satisfied that the prosecution has proven beyond reasonable doubt that you two were the persons who seriously assaulted and caused grievous bodily harm to Miriam Papakat on 14 December 2013, at Kabakada village in Rabaul. But because I found absence of intention in your actions, according to law, the charge of grievous bodily harm with intent under section 315(a) (d) of the Criminal Code cannot be sustained.

56. However, I am satisfied and find that the prosecution has proven beyond reasonable doubt the charge of grievous bodily harm against you two, pursuant to section 319 of the Criminal Code. The alternative charge against you two is sustained.

ORDER OF THE COURT

Verdict: Guilty of the alternative charge of grievous bodily harm.

______________________________________________________

Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the two accused