N4204

PAPUA NEW GUINA
[IN THE NATIONAL COURT OF JUSTICE]

CR 410 of 2007

STATE

V

DOREEN ALE

Kundiawa: Sagu AJ
2010: 9, 17 March

CRIMINAL LAW - Practice and Procedure - Self Defence, Accident - Assault in domestic setting - two wives fighting

EVIDENCE – inconsistencies - prior statements - credibility of witness - child witness- need to understand nature of oath

Cases cited:

Rolf Schubert v The State [1979] PNGLR 66
Java Johnson Beraro v The State [1988-89] PNGLR 562
Tapea Kwapena v The State [1978] PNGLR 316
The State v. Leonard Masiap [1997] PNGLR
Michael Tenaram Balbal v State 2007 SC860
State v. Peter Malihombu (2003) N2365 
State v So'on Taroh (2004) N2675 
St. v. Brian Inolu (2008) N3493

Counsel
Joe Kesan, for the State
Ms. Tiria Ohumu, for the Accused

DECISION ON VERDICT
17th March, 2010

1. SAGU AJ: The accused Doreen Ale pleaded not guilty to the charge, that on the 24th day of October 2006 she caused grievous bodily harm to one Mathilda Joe (victim) contrary to section 319 of the Criminal Code Act. This is the ruling on the verdict of the charge. 

Brief Facts on Indictment

2. The following facts were put to the accused on indictment to which the Accused pleaded not guilty:- 

"The Accused and the Victim are both married to the one man Joe. The Victim is the first wife who lives in Nindimba Village with her children, while the accused is the second wife and lives at the Sepik Block in Kundiawa Town. 

On the 24th day of October 2006 about 8.00am in the morning the Victim and her small son came to see her husband Joe at the Sepik block where the Accused lives with the Victim. The Victim Mathilda argued with her husband who was with the Accused for two weeks and as he had not attended to her son who had been sick for some time. That argument developed into a scuffle between Joe and the Victim. At that stage the accused joined in the argument which developed into a fight. During this fight the Accused drew a knife and stabbed the Victim on her left, back shoulder.
As a result of the stab wound, the Victim lost a lot of blood and suffered internal bleeding. The Victim was taken to the hospital for treatment." 

THE CHARGE SECTION 319

3. The charge is laid under Section 319 of the Criminal Code which provides that:-

"A person who unlawfully does grievous bodily harm to another person is guilty of a crime."

4. Section 1 defines "grievous bodily harm" to mean 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. The Accused does not dispute that she inflicted grievous bodily harm to the Victim. However, she contends that it was done in self defence and or an accident. I will come to that a bit later.

STATE EVIDENCE

6. The State Evidence consisted of the following documents tended by consent and the oral sworn testimonies of the Victim and her son John.

Exhibit No.		Description
P1(a)	Dr. Moses Aiwa Affidavit dated 23.1.2007 attaching medical Report
P1(b)	Medical Report by Dr. Moses Aiwa dated 21.11.06

P2(a)	Record of Interview conducted on 22.1. 2007 Pidgin version
P2(b)	Record of Interview conducted on 22.1. 2007 English version

MEDICAL REPORT

7. Doctor Moses Aiwa's Affidavit which restates his Medical Report came in by consent, which basically states that he examined the Victim who was found to have preumohydrotherax on the left chest after X-ray. This can be attributed to the use of a sharp object such as a knife. The Victim was treated with

1.	Thoracotomy Done
2.	Wound sutured
3.	Antibiotic (penicillin, Ammoxl)
4.	Analyesis (panadol, Aspirin)

8. The medical term preumohydrotherax refers to internal bleeding and so the doctors report is basically saying that there was internal bleeding found on the left chest cause by some sharp instruments such as a knife.

RECORD OF INTERVIEW

9. This record of interview was conducted on the 22nd of January 2007. The Accused was asked where she was on the morning of the 24th of October 2006 to which she replied she was with her husband Joe. While they were there, the Victim came and argued with Joe. In Question and Answers to Q 11 & 12. 

The accused says the Victim vomited blood, resulting from a knife wound and she explains in her answer to Q. 18 & 19 and I quote:-

"When me and MATILDA pulled a piece of branch to and from and when Victim Matilda fell on her knees I forced the piece of branch out of the hands of MATILDA from the head position down towards her back, the kitchen knife that I was holding stabbed her in her back "

STATE WINTESS MATHILDA JOE (Victim) Sworn Statement.

10. Mathilda gave sworn evidence that on the morning of the 24th of October 2006 she and her sick son John who was 8 years old then came into Kundiawa town looking for Joe. They looked for him everywhere in town and could not locate him until in the afternoon around 2-3pm when they went to the Sepik compound to the house of the Accused, which was where they found Joe. She started an argument with husband Joe, as he had not attended to their sick son, John who had been sick for about three weeks. In the course of the argument Joe hit her head with a stick and her head bled. When the Accused saw this she came outside and saw it and said " Sanguma flying fox kilim em". These words offended the Victim and I quote from her evidence:-

"So I grabbed the same stick my husband used on me and followed the Accused but she locked her house, so I left the stick and went back, away from the front door about 6 meters. As I was walking away from her, she came from the back and stabbed me on my back with a knife so I fell down. She knifed me on the left hand side of my shoulder at the back" 

11. She was taken to the hospital and admitted for weeks. 
 
12. The stick measured about 75 cm long and 2 cm thickness. There had been previous fights between the two women.

13. The Victims witness denied flatly the defences suggestion that she went to the Sepik block to the accused house in the morning and not in the afternoon as she stated in her oral evidence in chief. She says and I quote"that is a lie, I went in the afternoon". She also denied being involved in a fight with the Accused inside the house and not outside as she claimed. She also denies that their neighbors gathered to observe their fight. She agrees that she was arguing with her husband and that the accused had no reason to stab her. She said she was treated for her head injury as well at the hospital. 

Prior Inconsistent Statement

14. The Defence draws the Witnesses attention to a prior statement she made to the police on the 27th day of November 2006. The Witness remembered making that statement and having signed it upon completion. The Defence tendered the statement as evidence without objection, marked exhibit D1
Paragraph 6 of that statement:-
"
6.	For no reason suspect Dorin said, "Sanguma Flying Fox ya, kilim em" I got angry for this damaging word so I picked up a branch of a tree and walked into the house to assault her but another woman who was there stopped me and removed the stick from my hand.

7.	Suspect Dorin used the knife she was holding and stabbed me somewhere near the face but I blocked the hit with my hands.

8.	When I blocked it she stabbed me again at my back left shoulder, I lost some blood and fainted and my husband Joe took me to Kundiawa Hospital where I was admitted."

15. In re-examination the Witness says she can read and write. She maintains that she did not say those words in paragraph 6 and 7. She did not read it before signing as the Policemen just told her to sign. 

JOHN JOE (CHILD) SECOND STATE WITNESS
 
16. This Witness John Joe is a child who is the son of the Victim. He is 11 years old now however, at the time of the incident he was 8 years old. Since he is a child there was some doubt as to his capacity to comprehend the nature of an oath or affirmation. I consulted the lawyers and decided that it would be inappropriate to administer an oath or affirmation. The Court had to be satisfied that the child had the capacity to give evidence under section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. The guidelines for the reception of evidence by a child witness are provided by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562. In Schubert, the Court stressed that the question of whether a child witness' unsworn evidence is admissible, is a matter for the "good sense" of the Court. In Beraro, the Court held that the trial Judge erred when convicting an Accused of willful murder, by shooting an innocent man in the Waigani Swamp, as conviction was based on testimony of the Victim's five-year-old son but the trial judge had no evidence before him from which he could conclude that the child understood that he could be punished if he told lies to the Court.

17. However, in this case after he answered some questions from me, he appeared to clearly understand the nature and purpose of the Court proceedings, the reason he was in Court and that the lawyers would ask him questions about events taking place when his mother was wounded. I quote the more relevant question put to him by the Court:-

Q.	 Why are you in Court today?
Ans.	My mother and the other women fought this fight so I am here in Court as a witness. 
Q. Do you understand what will happen if you tell a lie
Ans.	Yes, the police would come and get me
Q. And you understand, you get into trouble with the law. 
Ans.	Yes I understand. 

18. The young witnesses' responses to my questions were immediate and appeared to be bright and intelligent. He seemed a confident child. I was satisfied that he understood the importance of telling the truth and that he understood the consequence of not telling the truth. He gave his evidence on Oath.

19. John Joes evidence is that on the 24.10.06, his mother, the Victim and he himself came into Kundiawa town from the Village looking for his father. He had been sick for the past three weeks leading up to that day. They could not find him in town so they went to the Sepik block in the afternoon. There his mother argued with his dad and his dad assaulted his mother on the head with a stick and she bled. Then the Accused said something to his mother and she got upset and took a stick and attacked the Accused to the house but she came back. The Accused went to the house, came back and stabbed his mother on the back outside the house. There were no other people except for another women called Ping, his father's cousin sister in the house making only five of them. 

DEFENCE EVIDENCE

20. The defence called the Accused and Sandy Thomas a neighbor who came to observe the fight on the day who gave sworn evidence. Also tendered is the Victims prior statement marked exhibit D1.

DORIN ALE's (ACCUSED) EVIDENCE 

21. She says she lives in Sepik Block. It is a settlement with lots of houses close to each other and lots of people live there. On the day in question, 24th October 2006 between 8-10am in the morning she and husband Joe were in the house drinking tea or having a late breakfast inside at the Sepik Block. She opened the door and saw Mathilda, the Victim and her son outside and she informed her husband Joe who went outside to see them. The Victim argued with husband Joe for not visiting her and their sick child. The Victim then accused her of making sorcery to her son to which the Accused replied to the Victim that it was her responsibility to take care of her children. By that time the neighbors had gathered outside to observe them, among them was Joe's cousin sister Ping. The Accused called her into the house to drink tea and to have cooked unpeeled sweet potato (kaukau). She came inside and they were sitting on the bench inside the house just behind the door while the Victim and husband were arguing outside. Ping was sitting closer to the door and the Accused sat behind, next to Ping. The door was open. The Accused was peeling the skin off the cooked kaukau with the knife to give to Ping to eat with her tea when the Victim came to the house with a big long stick measuring about 1 meter and about 3 centimeters thick and swung it where Ping and the Accused were sitting inside the house. This stick got both of them and the Accused caught the other end of the stick with her hand and they struggled. At this time the knife the Accused had been using to peel the Kaukau was still in her right hand. Both her and the Victim were hanging onto the stick and struggled and the Victim came down on her knees on the floor. Both women were still hanging onto the stick and the Accused twisted her hand behind her shoulder and pressed the stick hard against the knife onto the Victim's back. She then let go of her stick and got up and ran outside. She was spiting out blood there and they took her to the hospital.

22. There had been several previous fights between the two women where the Accused had her left hand broken.

SANDY THOMAS DEFENCE SECOND WITNESS

23. Sandy Thomas gave sworn evidence that she lives next door to the Accused. Their houses are 6 meters apart and she knows the Accused very well. Her house is located on a slightly higher ground to that of the Accused house giving her a slightly higher view where she is able to observe better. One will need to pass her house in order to get to the house of the Accused. 

24. On the morning of the 24th day of October 2006 she was outside in the front of her house and saw the Victim Mathilda and her son going to the Accused house. She thought this would be trouble as the two women do not get on well, so she looked down towards the house of the Accused. The Victim went and was arguing with her husband Joe. The Witness left her house and walked across to the Accused house when she heard the Victim saying to Joe "you are a vagrant" to which Joe replied "I am this vagrant who is feeding you". This really means, if I am a vagrant than how come I provide for you. These words made Joe angry and Joe got a big stick and assaulted the Victim with it. The Victim was angry for a while, then she got the same stick saying "with this stick your wife will die" and she went inside the house. When she came outside she told Joe ""mi kisim knife" or translated would mean I am wounded with a knife. Many people had gathered there to observe as we are a close community in the block.

25. The Witness in response to the State, questions why she did not tell this to the Police in the first place responded and said that the Police had never asked her to give her statement. That she had come today because the accused had asked, she was an eye witness. She was not the only one there, as there were plenty of others present on that day.

FACTS NOT IN DISPUTE

26. The following facts are undisputed:

1.	That the Victim and son went to the Sepik block where Accused and the husband Joe were staying.
2.	An argument took place between Joe and the Victim over their sick son.
3.	Joe hit the Victim on her head with a strong long stick measuring more than a meter long and 2 to 3 cm in thickness.
4.	The Victim took the same stick and tried attacking the Accused.
5.	That Joe's cousin sister Ping was present.
6.	That the Accused stabbed the Victim on the back with a knife.
7.	The Victim sustained deep wounds on her left back shoulder
8.	The Victim was hospitalized for 2 weeks.

ISSUE

27. The Accused does not deny that she inflicted the stab wounds on the Victim. However, she says it was done in self defence under Section 269 or accident.

RELEVANT LAW

28. The law on self defence is settled in this jurisdiction. In Tapea Kwapena v. The State [1978] PNGLR 316, the Supreme Court held that where a defence of self defence …..is raised under the Criminal Code, the questions to be determined beyond reasonable doubt are:

a)	whether the assault on the Accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm;

b)	whether the Accused believed that he could not preserve himself from death or grievous bodily harm, otherwise by using the force that he in fact used, and;

c)	whether the Accused's belief was based on reasonable grounds: or whether the State had negative beyond reasonable doubt the possibility that the Accused so believed on reasonable grounds.

29. The State bears the onus of proof once a defence of self defence is raised. I adopt the wording of Sevua J. in The State v. Leonard Masiap [1997] PNGLR 610 where after reviewing the authorities he stated;

"The onus of proof therefore remains with the prosecution throughout ….. The State must prove beyond reasonable doubt that the necessary elements in s.269 averted to in Takip Palne do not exist … The State must exclude or negative each of the elements of self defence in s.269 of the Code."

DISPUTED FACTS

30. There are two versions here of those facts surrounding the knife wound on the victim.

31. First, the State alleged that you did not act in self defence when you unlawfully caused grievous bodily harm to the victim. It alleged that you came outside of the house and came from the victims back as she was walking away from you and stabbed her with the knife on her back shoulder. The State said you had absolutely no reason for the stabbing as the victim did not provoke you in any way. The argument was between the victim and husband Joe. 

32. However, your story is that the victim came with a big stick measuring more than a meter in length and 2-3 cm in thickness and attacked you and Ping who were sitting in the house drinking tea. When she attacked you, you caught the stick and both of you struggled and in the cause of the struggle the knife you were holding with the stick came down on the victim hard wounding her.

FINDINGS OF FACT

33. Since there are two versions of the events, it really comes down to a question of credibility as to who the Court believes. This has to do with the reception, assessment and acceptance or rejection of the evidence called by the parties. I respectfully adopt the principles laid down in the Supreme Court case of Michael Tenaram Balbal v. State 2007 SC860 where the court said:

"The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts. 3. This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult. 4 Another important factor is the demeanour of the witnesses in the witness box as they give their testimonies. Witnesses' performance in the witness box can indicate whether they are truthful witnesses telling it all or are untruthful witnesses, withhold the truths."

34. There are cases on the point such as State v. Peter Malihombu (2003) N2365, State v So'on Taroh (2004) N2675 and more recently in State v Brian Inolu (2008) N3493. I adopt these principles and will apply them here in determining whether self defence is established in law. I will base the findings of this Court on the credibility of each witnesses through their demeanor and also on logic and commonsense as well as inconsistencies in their evidence.

35. The State evidence from the victim is that she went to the accused house in Sepik compound in the afternoon. She maintained her position when put to her in cross examination. Yet the indictment presented refers to the morning of the 24th October 2006. Also in the Record of Interview it was put to the accused as the morning of that day as being the time of event. Further, the victim's oral evidence in Court contradicts her earlier statement to the police where she says she went to the house and the accused attempted to stab her on her face but she blocked it and she got it on the back. This is in complete opposite to her statement today where she was outside walking away from the accused when the accused stabbed her on her back coming from the back. On the basis of those inconsistencies, I find it difficult to accept her story.

36. The son naturally supported her mother which is expected. He gave no extraordinary evidence but supported the mother in almost every aspect except for what took place inside the house. I note that he was only 8 years old then and I do not know how accurately he can recall the events other than some one close to him like his mother coaching him. Since I have rejected his mother's story it follows I reject his story as well.

37. It is for the State to proof every element of the defence of self defence. Since I have rejected both the State witnesses' evidence, I need not go further to assess the evidence of the defence. However, I will proceed for the sake of completeness of this reasoning process.

38. The accused gives her version of what took place as supported by Sandy. The offence took place in the morning. Sandy saw the victim and her son that morning going to the accused house. She also saw the victim pick up the same stick her husband had used to assault her and attacked the accused who was in the house. When the victim came out, she was bleeding from the knife wound. This witness is an independent eye witness who gave and account of what she saw. independent eye witness who gave and account of what she saw. This version of event was not shaken in cross examination. Her demeanor was good and events she related were logical. There is no reason why I should not believe her.

39. The accused gave an account of what happen inside the house. The victim attacked her inside the house and she caught the stick and they struggled and in the process the knife wounded her. I hold that is what happened. 

40. It is settled law as I have mentioned above that once the defence of self defence is raised, the State bears the onus of proof and proof beyond reasonable doubt to negative all elements of self defence and I am not satisfied that the State has discharge that duty. In passing I make mention that Ping who was present inside was not brought forward to testify for reasons known to the State alone. Her story may have shed some light in this case. 

CONCLUSION

41. In conclusion since the State has failed to proof that the defence of self defence does not exist, I find the accused not guilty and therefore acquit her and discharge her from this charge of Grevious Bodily Harm. I further order for the bail monies to be refunded.

______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused