N8886

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1137 & 1138 OF 2019

BETWEEN:
THE STATE

AND:
TIMOTHY POMINIS AND LESLEY PENI

Lorengau: Narokobi J
2021: 23rd February
2021: 25th June

CRIMINAL LAW – unlawful grievous bodily harm – Criminal Code, Division V.6 – Section 319, unlawful grievous bodily harm – s 7 – aiding and abetting - trial on conviction.

The State alleges that on 9 December 2018 between 1am and 2am the complainant was having some drinks with the co-accused at one of the co-accused’s house, Timothy Pominis. Both co-accused Timothy Pominis and Lesley Peni are serving policemen. The house is an institutional house of the police. Some misunderstanding arose between Timothy Pominis and Lesley Pondraken, the complainant, and he left. The complainant was followed down to the main road by the two co-accused. At the junction was a police vehicle described as “MS 18.” There was a scuffle and then the two-accused chased the complainant through the Lorengau Correctional Services (CS) area. He slipped and fell at the perimeter of the CS area and Lesley Peni came and held his left hand while Timothy Peni cut it with a knife some 30cm long. The State further alleges that the co-accused aided and abetted each other in the commission of the offence of unlawfully doing grievous bodily harm to Lesley Pondraken pursuant to s7(1)(a)(b)(c) of the Criminal Code, thereby contravening s 319 of the Criminal Code.  The two accused pleaded not guilty.

Held:

(1)	Since the accused were known to the complainant this was a case based on recognition evidence as opposed to identification evidence.

(2)	The accused guilt is also supported by circumstantial evidence.

(3)	In case sought to be proven on circumstantial evidence, the guilt of the accused must be the only rational inference from the evidence considered as a whole (Paulus Pawa v The State [1981] PNGLR 498, followed).

(4)	An inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent the court from finding the accused guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence (The State v Tom Morris [1981] PNGLR 413).

(5)	In order for derivative responsibility to be established ie aiding and abetting, there must be both an intention to encourage the commission of an offence and an encouragement in fact to commit an offence (Aieni v Tahain [1978] PNGLR 37, adopted).

(6)	The series of events from the evidence taken as a whole, commencing from the misunderstanding at the house of one of the co-accused with the complainant, to the manner in which the co-accused followed the complainant with the motive to harm him, to the timing of the whole incident leads to the conclusion that the co-accused aided and abetted each other to commit the offence of unlawful grievous bodily harm.

(7)	The guilt of the co-accused was the only reasonable inference from the evidence considered as a whole.

(8)	The co-accused were therefore guilty of unlawful grievous bodily harm under s 319 of the Criminal Code as they had aided and abetted each other in the commission of the offence within the meaning of s 7(1)(c) of the Criminal Code.

Cases Cited:
The following cases are cited in the judgment:

Aieni v Tahain [1978] PNGLR 37
Beng v The State [1977] PNGLR 115
Paulus Pawa v The State [1981] PNGLR 498
State v Kukari (2009) N3635
The State v Tom Morris [1981] PNGLR 413

Legislation cited:

Criminal Code Act, Ch 262
Counsel:
Mr. P. Kaluwin, for the State
Mr. K. Pokiton, for the Accused
JUDGMENT ON VERDICT
25th June, 2021

1.	NAROKOBI J: INTRODUCTION: This is a decision on verdict on whether Timothy Pominis and Lesly Peni caused aided and abetted each other pursuant to Section 7 of the Criminal Code to unlawfully do grievous bodily harm to one Lesley Popou Pondraken contrary to Section 319 of the Criminal Code?

Background

2.	The issue I must decide is whether in the early hours of 9 December 2018, between 1am and 2am, the complainant, Lesley Popou Pondraken’s left arm was slashed by Timothy Pominis with a bushknife while his co-accused Lesley Peni held on to his hand just outside the Lorengau Correctional Services perimeter?

3.	To establish contravention of Section 319 of the Criminal Code, the following elements have to be proven (State v Kukari (2009) N3635):

“28. Section 319 has only two elements: doing grievous bodily harm, and doing it unlawfully. Both elements have been proven...”

4.	"Grievous bodily harm " is defined in Section 1 of the Criminal Code. It 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.”

Issue 

5.	In my view this is a case of recognition evidence based on the lighting and can also be supported by circumstantial evidence. This is because the evidence on the lighting (as will be seen) was contested. The issue is therefore:

•	Was there sufficient lighting for the complainant to identify the two accused?;
•	In addition, is the guilt of the accused the only reasonable inference from the evidence considered as a whole?

6.	The way I resolve this issue will enable me to establish whether the co-accused are guilty or not of the charge, that is whether each of the elements of the charge have been proved beyond reasonable doubt and the State has negatived the co-accused defence beyond reasonable doubt.

State’s Case

7.	The State’s case is that on 9 December 2018 between 1am and 2am the complainant was having some drinks with the co-accused at one of the co-accused’s house, Timothy Pominis. Both co-accused Timothy Pominis and Lesley Peni are serving policemen. The house is an institutional house of the police. Some misunderstanding arose between Timothy Pominis and Lesley Pondraken, the complainant, and he left. The complainant was followed down to the main road by the two co-accused. At the junction was a police vehicle described as “MS 18.” There was a scuffle and then the two-accused chased the complainant through the Lorengau Correctional Services (CS) area. He slipped and fell at the perimeter of the CS area and Lesley Peni came and held his left hand while Timothy Peni cut it with a knife some 30cm long. Campbell Christopher was the on duty at the time and came and took the complainant to the hospital with some inmates.    

Defence Case

8.	The Defence has raised the hypothesis that the complainant was slashed by another man, who goes by the name of “Smash,” and the Complainant has mistakenly identified the co-accused because the place was dark. There were no flood lights at the Correctional Services area as it now has. They say that the Police should have obtained a statement from Smash after he presented himself at the police station and the refusal by them to do that showed that they have not been fair in their investigations and have not excluded the possibility that he committed the crime.

Documentary Evidence Tendered by Consent 

9.	The State has tendered a number of documents by consent and they include the Record of Interview of the co-accused, the medical report of the Complainant by Dr Otto Niuman and an affidavit of Niachalau Posekei a relative of the Complainant. The affidavit contains graphic photographs of the injuries sustained by the Complainant. The documents are as follows:

No	Date 	Description of document/item tendered	Exhibit No	
1		18/2/19	Medical Report of Lesley Popau M/23 Yrs – Pere, Penabu LLG by Dr. Otto Numan, Director Curative Health Services	“A”	
2		4/3/19	Affidavit of Nechalau Posakei sworn 4/3/19	“B”	
3		9/12/19	Photograph No.1 – Picture of victims right hand with wounds and blood over on his body.	“B1”	
4		9/12/19	Photograph No.2 – Picture of victims left hand with serious wounds.	“B2”	
5		Undated	Photograph No.3 – Picture of victims left hand with wounds	“B3”	
6		Undated	Photograph No.4 – Opening wound on the back of the left hand	“B4”	
7		Undated	Photograph No.5 – Left hand woud-stitching	“B5”	
8		 Undated	Photograph No.6 – Victims legs with blood and trousers worn full of blood stains	“B6”	
9		Undated	Photograph No.7 – Victims wounds on both hands (right/left) dressed.	“B7”	
10		Undated	Photograph No.8 – Victims wound on his left hand getting injection for thorough clean up.	“B8”	
11		Undated	Photograph No.9 – Victims wound with fractured bone on his left hand near the elbow.	“B9”	
12		Undated	Photograph No.10 – Victims singlet worn during the incident full of blood stain.	“B10”	
13		Undated	Photograph No.11 – Victims short worn during the incident with blood stain.	“B11”	
14		24/1/19	ROI – Timothy Pominis – Pidgin version.	“C”	
15		24/1/19	ROI – Timothy Pominis – English version.	“C1”	
16		21/1/19	ROI – Lesley Peni – Pidgin version. 	“D”	
17		21/1/19	ROI – Lesley Peni – English version.	“D1”	
18		24/1/19	ROI – Jeffrey Lanza – Pidgin version.	“E”	
19		24/1/19	ROI – Jeffrey Lanza – English version.	“E1”	

Crime Scene Visitation

10.	I also visited the area where the crime was alleged to have occurred with all the parties under the presence of the police on 18 February 2021 between 2pm and 3pm. The alleged crime occurred around the Correctional Services (CS) area in Lorengau. There is a main road that runs from Lorengau to the North Coast of Manus Island. The road runs past the CS area. Driving from Lorengau, there is a short road that connects to the main road on the left that accesses the police barracks. On the right is the CS area.  Timothy Pominis house is in the police barracks and some 80m from the junction. On the other side of the junction is the CS area and it has a gate leading into it. This is known as the “old gate”. From the old gate, some 30m towards Lorengau town side is another road off the main road. This runs down adjacent to CS area on your left to the “new gate” of the CS area towards the seaside. At the side of the road down to the old gate, not far from that junction is a drain. At the time of the incident there was a police vehicle described as “MS 18” stationed on the main road near the old gate. It is disputed as to which way the vehicle was facing.

11.	Evidence on the lighting around the perimeter of the CS area is disputed, so I will refer to this later in my judgement.   

State’s Evidence

12.	The State called three witnesses. The first one was the complainant. He says that there was some disagreement at the police provided residence of Timothy Pominis between the two accused who are serving policemen with the Lorengau Police Station and the complainant on the night of 3 December 2018. As a result of the disagreement, he left the house and walked down to the main road some 80m. He was followed by the co-accused. At that time another police vehicle arrived. A scuffle broke out and the two co-accused chased him. 

13.	He went to enlist the help of his relative a Teu Posakei. Another person by the name of Peter Maron followed him down to the main road.

14.	He ran on the side of the CS area along the side to the road leading to the new gate. He slipped and fell and it was there that Lesley Peni held his left hand, so he could not pull it away and Timothy Pominis slashed it with a 30cm long bush knife. They were then told to stop by a CS personnel on duty at the time, Campbell Christopher, who took him to the hospital with the assistance of four (4) inmates.

15.	The complainant says that he can clearly identify Timothy Pominis and Lesley Penis because there was a flood light from the CS area lighting up the area and he was facing them when they attacked him. They are known to him so he can recognise them.

16.	Campbell Christopher was the next State witness. He is a correctional services officer. He has been employed for 26 years with the Correctional Services. He was on duty at the time at the old gate for his 10pm to 6am shift. He says that at the time of the incident in 2018 there was no flood lights. He did not see who cut the complainant or where the injury occurred. He recalls preventing the two co-accused from entering the CS area. It was his evidence that he heard noise of a fight and saw the co-accused chase the complainant. It was dark. When he next saw the complainant, he was injured so he told the two co-accused to leave him. With the assistance of four (4) inmates they brought the complainant to the hospital. 

17.	Peter Maron was the third State witness to be called. His evidence was that he accompanied the complainant down to the main road where there was an MS 18 vehicle and the two co-accused. He followed the complainant because he complained about being attacked by certain policemen. At the scene he recalls seeing the MS 18 vehicle on the main road. Lesley Peni tore his t-shirt. He became scared and left. At the time he left the complainant was not injured. He says there was a flood light at the CS area and he could see things clearly.

18.	Dr Otto Niuman was the State’s final witness. In his report dated 18 February 2019, which was tendered by consent, he describes the injuries in this way:

“The examination of the sustained wounds is described hereunder:

1.	An inverted “U” laceration on the medial aspect of the left hand with its peak just below the lowest border of the small finger measuring some 14cm in length.
2.	Another laceration of about 18cm in length on the medial aspect of the mid forearm which was bone deep and dividing the tendons, muscles and the ulna nerve which run along this area.
3.	A 6cm laceration of the mid right posterior forearm which did not cause any major problem.
4.	Another transverse laceration of 5cm on the right and upper back.”

19.	During examination in chief Dr Niuman said that such injuries would have been caused by a flat sharp metal object.

Defence Evidence 

20.	The Defence relied on three witnesses – the two co-accused and that of their senior colleague, Sergeant Kumasi.

21.	Lesley Peni is a serving policeman at Lorengau Police Station. He is married and holds the rank of First Constable.  Lesley Peni says that they were drinking at Timothy Pominis house on the night of 3 December 2018. The complainant came in and joined them. Due to unwelcoming comments from Timothy Pominis, he left. After 10 to 15 minutes later they heard the complainant swearing at them at the junction. They then walked down. At that time an MS 18 vehicle drove by and stopped in front of the CS area. They chased the complainant who ran along the main road and turned left to the road leading to the new gate. They tried to catch him by going through the old gate but were stopped by Campbell Christopher and they left. He did not assault Peter Maron or the complainant. 

22.	Lesley Peni then said that two weeks later, a guy by the name of “Smash” was brought to him by one of his colleagues Daniel Watah. Smash told them he had cut the complainant as he was swearing at the policemen. They told Smash to go to the station to see their superior Sergeant Kumasi and report himself. He did, but his alleged confession was not accepted as the investigating officers said this would interfere with the current investigations. He says that the investigations were not fair as they should have interviewed Smash and obtained a statement from him.

23.	Timothy Pominis, confirms the evidence from Lesley Peni. He is also a policeman with the Lorengau Police Station. He was not happy that the complainant entered his premises. After the complainant left, he heard him scream at the main road, swearing at them badly. He went with Lesley Peni to see the complainant as he was angry. He brought with him his police issued firearm. At that time there was an MS 18 vehicle parked on the main road in front of the CS area. After Lesley Peni advised the policemen in the vehicle what the complainant said, they shouted “hold him.” He saw the complainant stand at the front of the police car and then he ran to the old CS gate. Campbell Christopher stopped him and Lesley Peni from chasing the complainant. Then the men from MS 18 told them to withdraw and the returned to their house.

24.	The third Defence witness was Sergeant Kumasi. She confirms talking to Smash who admitted cutting the complainant. She brought the matter to the attention of Inspector Tapo but was advised that they would not take any statement from Smash, as this would be interfering with the investigations.

Findings of Facts

25.	After considering all the evidence, the only evidence that is before me identifying the co-accused as the perpetrators of the crime is that of the complainant. Peter Maron and Christopher Campbell did not offer direct evidence to corroborate the evidence of the complainant. The question is whether I should accept his evidence over that of the two co-accused who outright deny attacking the complainant.

26.	 Although this is a case based on recognition evidence, considering the accused are known to the complainant, I have also had regard to the case of Beng v The State [1977] PNGLR 115 on identification evidence and warn myself of the inherent danger where identification is relevant, by taking into account what the Supreme Court held:

In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.

27.	In my view the complainant’s evidence on the lighting should be accepted, although Christopher Campbell’s evidence was that there was no flood light at the time. I find that there was sufficient lighting for the complainant to recognise the accused. If there was no spotlight, the lighting could have come from the light of the fluorescent tube of where Campbell Christopher was, a distance of 30m away. In fact, in examination in chief Lesly Peni was repeatedly asked about the lighting and he makes reference to the light being similar to the one in the court room pointing to the fluorescent tube. Peter Maron an independent witness says there was a spotlight. It could have also been the headlights of the MS18 vehicle. Whatever it was, the lighting was sufficient for the complainant to identify Timothy and Lesly.

28.	This evidence on its own is enough for me to conclude that there was sufficient lighting for the complainant to recognise the two accused. But considering the authority of Beng v The State I have taken the liberty to consider the circumstantial evidence. 

29.	Can I still convict the co-accused on the basis of circumstantial evidence that the evidence taken as a whole reveals that there could be no one else who would have slashed the complainant then the two co-accused. This is the question I now consider.

30.	To commence this exercise, I must ask myself whether the two accused had the requisite motive to carry out the attack. There is no dispute that there was some misunderstanding between the complainant and Timothy Pominis. It is Timothy’s evidence after repeated questioning during cross-examination that he was angry because the complainant had desecrated his mother. In fact, he himself said that he went down to the road with his police-issued firearm. They had chased the complainant. Lesley Peni was also enraged at this time. He tore off Peter Maron’s shirt. I accept Peter Maron’s evidence on this, as in my view he is a witness of truth and had no reason to lie.

31.	The timing of the incident is another important consideration. From the evidence, the attack on the complainant took place not long after he was chased by Timothy and Lesly. If there was a long break from the time the complainant was chased by the two men and told to leave by Christopher Campbell to the time he was injured, would make the story that someone else slashed the complainant to be believable.

32.	 If the injury had taken place far from where the complainant was initially chased on the road would physically create the opportunity for a third party to come in and attack the complainant and surreptitiously leave. None of the witness from both the State and the Defence said anything remotely to suggest that there was a third person involved.

33.	The extent of the injuries on his arms shows that it could not have been done by a single person acting alone in the dark. A random attack in the dark would show that the knife would have been swung randomly and hit him at any part of his body. The wounds suggest that the complainant’s arm was held outstretched parallel to the ground and he was situated lower than attacker so that the knife was able to cut him from his fingers up to his mid arm and all the way to his shoulders. It came down with a strong force and pierced the flesh to an extent that almost reached his bones. The blow was directed at a specific part of his body to maim the complainant. The complainant’s evidence explaining what Timothy and Lesly did to his arm is consistent with the injuries he suffered from the medical report.    

34.	Although Christopher Campbell is to be credited for saving the complainant’s life, it seems that his evidence is selective. He says that he told Timothy Pominis and Lesley Peni not to enter the CS area, and soon after he was helping the complainant who was injured. He spontaneously described the place as dark without being asked about the lighting. I find it hard to believe that he would not have witnessed what happened. He was already on alert due to the loud noise and would have naturally be attentive to what was happening around him. The quick succession of the chain of events fuelled by the fury of the two co-accused is clearly against what his evidence says. 

35.	In my view, the co-accused were with the complainant after slashing him, and Christopher Campbell was the one that told them to leave after witnessing the attack and fearful that a death would occur in the CS area. He may not have seen the specific details of the cutting, but he was there. The area where the attack took place would not have been far from him because the heavy loss of blood meant that the complainant could not have walked for long without collapsing.  The incident happened as a single chain of events over a short space of time.  

36.	What do I make of the story of Smash? Although I accept that the police should have been diligent in their investigations to rule out this possibility, the chain of events in quick succession, the motive of the co-accused and the timing of the incident, coupled with the fact that the Defence did not cross examine the investigators nor attempted to locate Smash creates the impression that this is a convenient story to explain the attack. Lesley Peni as a policeman should have obtained the full name, address and contact details of this character. His life depended upon it. I also find it strange that the Defence did not call Daniel Watah to provide information on how he came to know of Smash. 

37.	Of all the witnesses, including Peter Maron who lives in that area, no one knows Smash except for Timothy Pomnis. Timothy Pominis says he knows where Smash lives. Yet this was not enough to produce further evidence to throw of the State’s case such as to call a family member of Smash to come and testify and provide his full name. 

38.	Although Sergeant Kumasi provided neutral and objective evidence, again it would be necessary to also provide some basic information such as the full name, address and contact details of Smash. To introduce a character who appears to play a central role would require much more information so as to provide a reasonable explanation for the court to accept. Admission of an offence by a person requires great care and consideration by the court, and the court is required to consider whether it was done voluntarily.
 
39.	With respect, the State has proven its case against the two accused and if the story of Smash was going to be central to the Defence case, a little more effort was necessary to show that there was real possibility that Smash committed the crime to rebut the State’s evidence. The bare possibility of innocence is not sufficient to disturb the inference of guilt. (The State v Tom Morris [1981] PNGLR 413). 

Elements of the Offence

40.	 I find that the complainant suffered grievous bodily harm for purpose of Section 1 of the Criminal Code. 

41.	After considering all the evidence, the chain of events points to the only conclusion that Timothy Pominis and Lesley Peni aided and abetted each other to cause unlawful grievous bodily harm to the complainant Timothy Popou Pondraken.

42.	There was no lawful excuse for them to inflict the injuries on the complainant. Consequently, I find that the State has proven beyond reasonable doubt all the elements of the offence and has negatived the defence of the accused beyond reasonable doubt.

Verdict 

43.	 Based on the foregoing, I find Timothy Pominis and Lesly Peni guilty of the charge of unlawful grievous bodily harm contrary to Section 319 of the Criminal Code, and I so order.

Public Prosecutor: Lawyers for the State 
Public Solicitor: Lawyers for the Accused