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State v Bhalio [1981] PGNC 50; N318(M) (23 September 1981)

N318(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

COLLIN BHALIO AND ROWLAND GIMA

Mount Hagen: Pratt J
15-18 September 1981; 21-23 September 1981

PRATT J: Both Collin Bhalio and Rowland Gima are charged that on the 27th May 1981 in Papua New Guinea, they unlawfully killed one Eki Kerowali. There is no doubt that on the 27th May 1981 Eki Kerowali was arrested at the Wara Kum for alleged driving under the influence and transferred to the Hagen Police Station. The police officers who arrested him were First Constable Ahoreka and Constables Kakae, Liara and Beve. Although the chase had lasted somewhere in the vicinity of half an hour, presumably around the Hagen area, and although all three constables admitted to a greater or lesser decree anger against the suspect for leading them such a chase, it is claimed by each constable that no impropriety of any sort was perpetrated by any of them at the time they finally arrested their man. Constable Beve was not called as a witness by the State. He drove the suspect’s motor vehicle back to the police station and more or less drops out of the picture. It is difficult for me to be sure of a time at which this arrest took place. It may have bean about 7.00 p.m. but I certainly do not rule out the possibility of it being a little earlier - even 6.30 p.m. On the other hand it may have been as late as 7.30 but I doubt this very much. It is impossible to be precise. The length of time it took to effect the arrest is also a matter of some doubt but at most I do not think it could have been any longer than fifteen minutes. I reject the period of two minutes sworn to by one of the constables. Wara Kum is two to three minutes drive from the Hagen Police Station.

One other factor is certain. The three constables drove back to the police station with their suspect Eki "at speed" and parked immediately outside or quite close to the entrance of the traffic office. Why at speed is anyone’s guess, but interestingly enough it is described as such by a number of witnesses, both for the prosecution and the defence. Again the best I can say is somewhere between 7.00 and 8.00 p.m. From this point on the testimony as to what happened is highly conflicting - not only as between the defence and the State but within the State case itself. I do not propose to examine the conflicts in detail and I shall restrict my examination to the part alleged to be played by the two accused. I also indicate at the outset that I reject Constable Ahoreka, Constable Liara and Constable Kakae as witnesses of truth as I do also the defence witnesses Constable Miro and John Kumung. The first three were called by the State, and I found their evidence conflicting on a number of points. For instance Ahoreka says that Bhalio punched Eki in the face while they were outside the traffic office. No mention is made of the number of times. Kakae says it was four times. Liara says there were four punches to the ribs and Constable Liplip (a fourth State witness) says it was two times - a box on each ear. Constable Miro denies seeing anything done by Bhalio at this or any other stage. There is also conflict as to what part Ahoreka, Liara, Kakae and Liplip played in getting the man into the traffic office. Constable Bhalio admits to giving a helping push through the door but this is denied by the others. Constable Miro, I think, is most suspect as he did not see either the pushing of Bhalio or the "slap" given inside the traffic office by Bhalio to the prisoner despite the fact that the accused himself admits to these acts both in his record of interview and in the witness box. I found Constable Miro unconvincing and unreliable on several points, and certainly I do not think the whole episode took anything like one hour, as he says. Nor, might I say, does anyone else think it took an hour. It seems to be a period of his own invention. Constable Dong, also called by the defence, saw what happened over a limited period of time only, and did not come on the scene until some time after all were inside the traffic office. He is of no assistance as to what occurred between Bhalio and the prisoner outside the traffic office. If I accept that some blow or other was given by Bhalio to the prisoner inside the traffic office, Dong must have arrived after that for he saw no such action on the part of his friend. John Kumung is both a friend and a wantok of the accused Bhalio. He was a civilian and thus to some extent free of the general passing the buck and ducking for cover which has been such a major aspect of this case. I accept that he was on the scene but I found him entirely unconvincing. He had certainly learned his lines well but was a poor actor. I had the distinct impression that the slightest departure from his set piece would have caused catastrophe and that his nervousness was not entirely due to the unfamiliar surroundings of a court. But even he was not prepared to implicate his friend Bhalio at the door of the traffic office. After all the police went inside the office, he no longer had any of the events under observation.

Returning to the three main State witnesses, Ahoreka, Liara and Kakae, I can only say of the last named who in fact was the first witness called for the State, that he showed up in a poor light indeed. He is the only witness called against the accused Gima. In this Court he says that Gima kicked the prisoner two times in the face inside the traffic office, yet he finally admitted under cross-examination that during the committal proceedings held only in August, he swore that Gima kicked the defendant in the chest and made no mention in the District Court of any kicking in the face. Further, in the lower court he said that the period of time he spent in the traffic office that night was about half an hour - yet in his evidence before me he put the time at five minutes. When asked, "Is it true Constable Ahoreka kicked the deceased in the stomach in the traffic office?", the startling reply in one part of the cross-examination was, "I cannot recall." Quite apart from any other factors, it is clear I cannot accept the evidence of this witness against the accused Gima and, in the absence of any corroborative features lying elsewhere in the evidence, nor can I accept his evidence against Bhalio. As this is the only evidence adduced by the State against Gima, and I say here that I find nothing either in this accused’s voluntary statement or in his record of interview or in his "failure to co-operate" with Inspector Hela, upon which I could draw any inference adverse to the accused, it follows that I am unable to be satisfied beyond reasonable doubt that Gima at any time struck the prisoner or associated himself in any way with the assaults which the prisoner undoubtedly suffered.

As regards the evidence against Bhalio of Constable Ahoreka and Constable Liara, I again say I find this part of the State case unimpressive. It is clear to me now, though it was not at the time the witnesses were actually giving their evidence, that they could well find themselves in very serious trouble. No doubt the investigation into the death of this unfortunate man is far from over and both these witnesses have been named by a number of other witnesses as persons attacking the deceased man, particularly in the case of Constable Ahoreka. That of course is quite apart from what might have happened down at Wara Kum. Both witnesses were clearly endeavouring to shift any possibility of blame from their own shoulders, on to anyone else who happened to be around. They were extremely careful in forming their answers. At times they purported to forget or not to see incidents which must have been more than merely "run-of-the-mill". They were ever watchful of their own position and in my view gave me little reason for believing that most of what they said was true. They have made the State Prosecutor’s task a difficult one indeed. So far as their evidence against Bhalio is concerned, with the exception that Bhalio did strike the prisoner at some stage or other in some way or other, I cannot be satisfied that any of the elements of the offence gains support from their testimony.

That leaves Constable Liplip. Although the crime charged here involved an incident by police in a police station, this witness has escaped without accusation from anyone. I am satisfied that his holding the collar of the prisoner and taking him into the traffic office did in fact take place and was for the purpose (a) of complying with a direction from his senior, that is Constable Ahoreka, and (b) to assist a man whom he believed was moving with some difficulty. Liplip appears to have no axe to grind of his own. He gave me the impression of frankness and truthfulness. I do not believe he was prepared to commit perjury out of some misconceived loyalty to either the Force or his workmates in the Force. I felt he is by none of his own choosing a person of some courage and determination, and having been unwittingly embroiled in the whole sorry episode has endeavoured to do the best he can. I accent his evidence that Bhalio was outside the traffic office and did strike the prisoner twice around the ears with a moderate degree of force from a closed fist. In the light of the medical evidence and the multiple sequence of events which took place inside the traffic office, I cannot be absolutely sure that Bhalio did kick the prisoner on top of the head although I am positive that someone did kick the area of his head but it is not necessary for me to go further than that. I arrive at my conclusion about the punch to the ears partly from my acceptance of Liplip as a witness of truth and partly from the fact that the accused did admit in his record of interview to punching the deceased - albeit he subsequently changed that on mature reflection to a mere slap on the chin and located the slap on the chin as taking place inside rather than outside the traffic office. Although I have rejected the evidence in general of Constables Ahoreka, Liara and Kakae, it is clear that where their suspect evidence is corroborated from other untainted sources then it can to some extent be accepted. It is of course impossible to say from their stories exactly what sort of blow was delivered by Bhalio, but I do accept that it was at least a blow given outside the traffic office to the head of the prisoner.

Being satisfied then beyond reasonable doubt that Bhalio did punch the prisoner about the ears just after he had been removed from the prison van and having been informed that the prisoner had given the police a lot of trouble, the next step is to relate this finding to the charge at hand. Mr Salika has pointed out with some force that if the accused was a party to a general assault on the prisoner as a result of which the prisoner died, then all those who participated in the assault are guilty of unlawful killing. For the moment I will accept that there were several assaults on the prisoner at the time he was taken down out of the van. The fact that these assaults occurred in full view of some of the picture theatre patrons is not unfortunately beyond the realm of possibility, and would indicate a certain contempt by the police of the general public once they have a prisoner freely within their grasp at the entrance to their strong-hold. But in my view there are several difficulties in the way of accepting the State’s broad proposition. It is impossible to avoid the conclusion that there were two separate and distinct series of assaults on the prisoner divided by space and time - the first outside the traffic office and the second inside after he had been sat on the floor. As I cannot find that Bhalio assaulted the prisoner inside the traffic office, it would be impossible to find that he aided and abetted a general assault which led to the rupture of the prisoner’s spleen and his subsequent death therefrom. The evidence certainly points to the assaults inside the traffic office as not only more serious but more directed to the general area of the spleen, whereas the assault outside the traffic office seemed directed more to the area of the prisoner’s head.

However there is even a greater difficulty to be overcome by the State. The evidence showed that not only did the pursuit of the prisoner prior to his original arrest go on for some considerable time, but that three of the police were angry with the prisoner when they finally forced him to a halt. This is not surprising. It is not inconsistent with human nature - even that of a disciplined policemen. What may have followed however is another matter. Bhalio was not the only witness before me who admitted that prisoners had been assaulted by police for no reason other than pride, anger and pique. The defence has called two witnesses to depose to the fact that after the police got the prisoner out of his vehicle at Wara Kum, they or some of them assaulted him quite viciously with kicks and punches.

Due to an unfortunate failure by defence counsel to organize his case completely, the specifics of this assault - which was no more than a general description of a number of people kicking and punching - were not put to the police witnesses in chief, though they did clearly deny that any impropriety or misconduct occurred at Wara Kum during their cross examination by defence in the State case. Application was made to call evidence in rebuttal by the State but in the exercise of my discretion I refused to accede to this request, partly because, inter alia, I had some idea of what the effect of the evidence to date was having on my mind especially on the question of credibility - unlike a judge sitting with a jury - and partly because the police had already made a general denial and would obviously deny the specifics. The defence I would add, opposed the application so I can assume they anticipated not only a denial but perhaps a questionable likelihood of destroying this particular area of evidence by cross-examination alone.

The application by the State conveys certain important implications. It is of course the unquestionable duty of the prosecution to produce all relevant evidence during their case, whether or not some of it supports the charge. I have no reason to doubt that the prosecution in this trial acted in any dereliction of this fundamental duty. This belief is confirmed by the fact that the prosecution was clearly taken by surprise. The prosecutor did just not have available to him this extremely important piece of evidence. Whether he should have or not is a matter with which I shall not concern myself. It was certainly difficult to understand during the prosecution case why enquiry was not made of the residents in the area where the arrest took place. It would seem an obvious course. The investigation was under the control of Inspector Hela, almost before the prisoner was declared officially dead at the Mt. Hagen Hospital about 9.15 or 9.45 p.m. The Inspector, however, may well have been deceived. Both the witness Demok and his daughter Maimo swore during the defence case that not only did they see the police assault the prisoner but that a little later on in the evening they were taken from the house to the C.I.B. Office by two or three men whom they believed were persons from the C.I.B. and there told in effect "to let the dead bury their dead". I accept their evidence that they were simply sat down in the office whilst the C.I.B. men made up appropriate statements without reference to either Demok or his daughter. In short, it has the appearance of a fraud and a sham and it is difficult to draw any conclusion other than the police were preparing a cover-up. So if ever these statements which were drafted by the C.I.B. men did get into the hands of Inspector Hela, they obviously did not contain any allegations of police misconduct and just as obviously had nothing relevant to say. Thus we find the State Prosecutor’s Office not only unaware of the allegations but in the embarrassing position of failing to produce to the Court highly relevant material.

Before passing to the importance of this material, I indicate that my impression of both Demok and Maimo, but especially the former, was most favourable. It was not shown that he bore any grudge or had his own axe to grind. I believe him when he says several other neighbours were approached but they refused to say anything to the police. When the police themselves are involved in a criminal charge it is unfortunately the case that many citizens believe their safety lies in seeing and hearing nothing. It takes some real courage to do what Demok and his daughter have done and I commend them highly for their show of grit and public spiritedness. He says he has been twenty-seven years in Mt. Hagen and has never been to Court. I believe him. His conduct in this trial can only enhance the attempt to deal effectively with the problem of law and order, especially in the Highlands. His answers were straightforward and to the point. There was no attempt at gloss or gilding the lily. He was not in any way broken down in cross-examination. His daughter amply corroborated him. There is certainly the difficulty arising from the time of day at which he said he observed events. Leaving aside his claim of 5.00 or 6.00 o’clock, I accept that it was in fact at a time when "day was merging into night" - that is dusk - when probably not much more than figures and movement can be made out but identification would be impossible, at least from the distance from which he was observing. That all the neighbours would have been watching avidly I take as axiomatic. That one man and his daughter should come forward, and were prepared to do so on the night in question, is most fortunate for the accused Bhalio.

What this evidence raises of course is the distinct possibility that the prisoner suffered his ruptured spleen at Wara Kum. This is not inconsistent with the medical evidence of either Dr. Beavis or Dr. Flynn. Dr. Flynn said death occurred one to two hours prior to his examination at 9.45 p.m. Dr. Beavis says the injury to the spleen which he observed could have led to death within half an hour but much more likely between one and two hours. Constable Liplip says that when the police motor vehicle parked outside the traffic office, he could hear a man crying in pain in the back of the vehicle and when he assisted the prisoner to the traffic office he was still crying in pain. Dr. Beavis says a ruptured spleen would cause pain though it might be masked if the patient had imbibed alcohol, and there is evidence that the deceased body contained 0.09% alcohol at the time of his death. In the end result I have a strong suspicion, and I need go no further, that the prisoner’s spleen was ruptured at the time of his arrest and well before he was brought to the police station. That being so, the acts of those who brought about this man’s death were already complete. The crime was finished at Wara Kum. It would be impossible for me to say on the present state of the evidence that anything done just outside the traffic office contributed to that death. It is not necessary for me to say in this trial whether anything which occurred inside the traffic office so contributed for I have found that I cannot be satisfied Bhalio committed any unlawful act on the deceased inside the traffic office. It may well be that others who were not present at Wara Kum but who did assault the deceased inside the traffic office may be partly responsible for this unfortunate man’s death but it is unnecessary for me to decide that. Consequently I find that Bhalio only assaulted the prisoner but that he did not in any way contribute to that man’s death. His assault had nothing to do with the death of Eki Kerowali, either in law or in fact.

One very disturbing feature has emerged from the evidence given during this trial (apart from the apparent attempted "cover-up" already mentioned). During evidence two of the police witnesses admitted very reluctantly that it is not uncommon for prisoners to be assaulted in the police station. Constable Liplip was asked, "Why do you say you are not quite sure (whether you saw anyone assault the prisoner in the stomach or back or the chest)? Is it quite common for police to assault prisoners?", to which the reply was given - "Yes." The second was Constable Gima. The following exchange occurred:

Q. When the deceased was being hit by Constable Liara and Constable Ahoreka, did you attempt to stop them?

A. No, because it was their own arrest and not mine.

There were then several questions asked by me and some answers which unfortunately have not been recorded. The next record I have is a question by myself:

Q. Here you are a policeman and you see an assault by police upon a prisoner. Why didn’t you report it or arrest him?

A. I cannot explain - the reason why is because he is in uniform. A lot of the time this sort of thing happens.

Then he was asked again by me:

Q. Why do you not arrest the constable for the assault? Is it simply because he is in uniform?

A. Yes.

He was then asked by counsel:

Q. On that night you were in uniform?

A. Yes.

Q. You said a lot of the time this sort of thing happened?

A. Yes, that is correct.

Q. When victims are being bashed up, the police are not being reported for what they do?

A. Yes.

Q. And that is because most of the time when the victims are being bashed the police are in uniform?

A. Yes.

Both these statements are put into a most distressing context, and their veracity underlined by the following exchange with the accused Bhalio after having explained in chief that he said to the prisoner in the traffic office "Yu tasol yu bikhed long ol polisman" and then slapped the deceased on the chin. The question was asked in cross-examination, "Why did you slap the deceased?" After a considerable delay the reply was made in this form: "Because he resisted arrest. First the police car stopped the deceased’s car at the junction of Kum Road but he kept on driving. That made me a bit angry and I slapped him." Constable Bhalio of course was not even present during the offending incident. He was however clearly annoyed and intended to teach the prisoner a lesson under the protection of his uniform, his comrades and the privacy of the police station.

The attitude expressed by these three young men is not I believe restricted to themselves. It reflects a general malaise in the Force, at least in some areas of the country. The "mekim save" approach can only bring the entire legal system into the utmost contempt and ridicule. I cannot imagine anyone would for a moment postulate that law and order can be built up, or restored, by unlawful actions on the part of a disciplined body whose very purpose and reason for existence is to uphold the law and bring malefactors to justice. The proposition is insupportable both in logic and in human behaviour. It would carry with it a complete destruction of respect for the law and an ordered society. I am not of course referring to those incidents where the members of our police force have to defend themselves from attack by vicious, or enraged, or "fighting-mad drunk", law-breakers. The law permits and indeed must permit force to be met with force on such occasions. But when there is no violence at all, as in the present case, or when the violence has passed away, the harm done to the system by on-lookers observing an apparently unprovoked assault by the police on a fellow citizen is incalculable - quite apart from the effect on the ever-mounting number of victims. It not only destroys the system but makes the perpetrators little more than ignorant bullies who are gradually destroyed by their own sense of worthlessness and shame.

A further and equally serious consequence follows from such general police misconduct. It is usually only when something goes seriously wrong that this type of conduct by the police emerges into the open. The spectacle in this trial of everyone running for cover and everyone blaming everyone else illustrates how corrosive and destructive the practice really is. I sincerely trust that the Commissioner will not treat the matter as some singular incident without any general significance. My own experience is otherwise. I also trust that the Commissioner will ensure that the investigation into the death of Eki Kerowali will be pursued with the utmost vigour and expertise, bearing in mind that so far it is the police in Hagen who have been asked to examine their own misconduct. In the absence of a special corps of investigators within the Papua New Guinea Police Force to examine allegations of police misconduct, a top investigator from outside the Western Highlands Province is clearly called for - and in saying that I intend no disrespect to Inspector Hela. Indeed, in my view, it would be to his own benefit. Finally, I also trust that an investigation into the attempted cover-up will also be made and any suspects brought to answer before the law.

I find you Collin Bhalio not guilty of unlawful killing but guilty of common assault.

I find you Rowland Gima not guilty of unlawful killing and not guilty of any of the alternative verdicts available under s.552 of the Code.

Solicitor for the State: B. Emos, State Solicitor
Counsel: G. Salika
Solicitor for the Accused: A. Amet, Public Solicitor
Counsel: P. Kopunye