N4099

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 229 OF 2010

THE STATE

V

BENJAMIN SAWALI

Vanimo: Makail, J
2010: 11th, 12th & 16th August

PRACTICE & PROCEDURE - No case submission - Unlawful grievous bodily harm - Not guilty plea - Elements of offence - Evidence of - Whether evidence vague, inconsistent and contradictory - Whether evidence is so lacking in weight and reliability - Matters of credibility of witnesses irrelevant in no case submission - Whether State has established prima facie case - No case submission dismissed - Criminal Code, Ch 262 - Section 319.
 
Cases cited:

The State -v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Roka Pep (No 2) [1983] PNGLR 287

Counsel:

Mr K Umpake, for the State
Mr F Kua with Mr T Berem, for Accused

RULING ON NO CASE SUBMISSION

16th August, 2010

1.	 MAKAIL, J: The State indicted the accused on one count of unlawful grievous bodily harm of a female by the name of Moleen Dusava on the morning of 07th June 2009 at Vanimo sawmill contrary to section 319 of the Criminal Code, Ch 262. The accused denied the charge and a trial was conducted to determine his guilt. The offence of unlawful grievous bodily harm is provided under section 319 which states:

"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."

2.	The State called two witnesses, namely the alleged victim Moleen Dusava and Judith Harris to testify against the accused. In addition to that, the State produced a number of documents which were tendered by consent: They were:

1. The record of interview of the accused in the Pidgin version dated 02nd September 2009 (Exhibit "P1"); 

2. The record of interview of the accused in the English version dated 02nd September 2009 (Exhibit "P2");

3. Medical Report by Dr Cherobim Kapanombo dated 09th June 2009 (Exhibit "P3");

4. The statement of Sergeant Polly Wilson dated 25th July 2009 (Exhibit "P4"); and

5. The statement of corroborator Constable Francis Augustine dated 25th July 2009 (Exhibit "P5").

3. At the close of the State's case, the defence made a no case submission. Mr Kua of counsel for the accused submitted the accused relies on both grounds of a no case submission in the cases of The State -v- Paul Kundi Rape [1976] PNGLR 96 and The State -v- Roka Pep (No 2) [1983] PNGLR 287. He submitted there is insufficient evidence to establish the essential elements of the offence. Alternatively, if there is evidence establishing the essential elements of the offence, first, the two State witnesses' evidence are vague, inconsistent and contradictory such that they are unreliable for the Court to find a case for the accused to answer. Secondly, the second State witness Judith Harris is not a credible and truthful witness because she had great difficulty answering questions during cross-examination. She took long time to answer simple and straight forward questions and at times asked for the questions to be repeated. Further, she was coached in her evidence. She admitted this in cross-examination. The Court must stop the case here. 

4. Mr Umpake of counsel for the State contended otherwise. He contended that matters concerning the credibility of witnesses of the State are irrelevant in a no case submission and ought to be ignored by the Court. What is of relevance is whether the State has established a prima facie case against the accused. As the identity of the accused is in issue, he contended that there is sufficient evidence from the two State witnesses identifying the accused. As to the defence submission that the two State witnesses' evidence are vague, inconsistent and contradictory, he submitted the witnesses have not been contradicted to an extent that it rendered their whole evidence incredible and unreliable. For these reasons, he submitted the Court should find the accused has a case to answer and should be called upon to answer the charge.

5. The cases of Paul Kundi Rape (supra) and Roka Pep (No 2) (supra) stand for two propositions in relation to a no case submission. First, whether there is evidence to support the essential elements of the offence and secondly, if there is some evidence covering the elements of the offence but it is so tenuous or incredible or discredited that it amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person, the Court has a discretion to stop the case. The second proposition suggests there is discretion by the Court to stop the case at the close of all evidence where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict an accused.

6. To prove the offence of unlawful grievous bodily harm, the State must prove the following elements:

1. A person;

2. Injures another person; and

3. Without lawful excuse or reason.

7. In a no case submission, the Court only needs to be satisfied that the State has established a prima facie case of unlawful grievous bodily harm against the accused. Is there evidence supporting each of the elements of the offence and even if there is evidence, is the evidence so lacking in weight and reliability that the accused could not be lawfully convicted and the case should be stopped from proceeding any further?

8. In the present case, the State's evidence supporting these elements came from the victim Moleen Dusava and Judith Harris. Moleen Dusave is from Yangoru in the East Sepik Province. She resides with his sister at Warakongkong settlement in Vanimo and was formerly employed at Vanimo sawmill. It is her evidence that between 5 o'clock and 6 o'clock in the morning on 07th June 2009, she and two girls by the names of Jenicar Fron and Judith Harris left their house at Warakongkong settlement for Peiwi market. It was almost 6 o'clock when they left the house and headed for Peiwi market to sell ice blocks. On the way, the accused approached them from behind and when she saw him, she said good morning to him but he did not reply. He was wearing a green round neck and sleeveless shirt. When she saw him, the place was sufficiently lit by the light from the dawn. They walked on and the accused followed them from behind. He was walking like he was drunk. 

9. Between the Weather Station or old DCA compound and a place called Transmitter, the accused picked up stones and threw at them. The first stone missed them and the second one hit the lid of the esky Jenicar and Judith were carrying and it fell off. She told Jenicar and Judith not to be afraid and to continue walking. They picked up the lid and continued on. The accused continued to follow them. He came up from behind her and pulled her bilum. This time, she saw he had wrapped the green shirt around his head and but nothing covering his face. He hit her with a stone. She sustained injuries to her face and eyes. She could not see and he tripped her and she fell down to the ground. He pulled out a kitchen knife and swung it between her legs. It penetrated through her shorts and pants to her vagina. She passed out after that. Whilst she and the accused fought, the two girls stood there watching helplessly. She knew the accused before the attack because he wanted to befriend her. She had seen him around Vanimo town and shops. He resides at Peiwi beach in Vanimo. She had no problems with him prior to the attack on that day.

10. Judith Harris is a Grade 10 student at Vanimo Provincial High School. She resides with her parents at Sawmill settlement in Vanimo. It is her evidence on 07th June 2009, she was at Moleen's house at Warakongkong settlement. On the morning of that day, she, Moleen, Jenicar Fron and Fide headed for Peiwi market at Peiwi. They were heading there to sell ice blocks to raise funds for a trip to Ambunti in East Sepik Province for a meeting. 

11. It was almost 6'oclock when they left the house. She carried an esky with ice blocks inside while Moleen carried a bilum with ice blocks inside. Jenicar also carried an esky. On the way, they turned and saw a man walking behind them. They told Moleen and she told them to walk on. The man was the accused. When he came close to them, she heard Moleen say good morning to him but he did not reply. They continued on walking until they reached a place called Transmitter. He picked up a stone and ran after them when he realised they were walking further away from him. She and the others ran ahead of Moleen. The man caught up with Moleen and stripped her clothes and stabbed her with a knife. She ran to the house and got her mother. Jenicar rang her mother at Warakongkong and she and others came in a motor vehicle and picked up Moleen. On their way to the hospital, they saw the accused standing beside the road at the Weather station or old DCA compound and stopped. They picked him up. They took Moleen to the hospital and left her there and took the accused to the police station.

12. From the evidence of the two State witnesses, there is no dispute that Moleen was attacked by a person on the morning of 07th June 2009. There is also no dispute she sustained injuries to her face and vagina as stated by her and the medical report of Dr Cherobim Kapanombo dated 09th June 2009 (exhibit "P3"). Further, there is no dispute there was no lawful reason for that person to attack her.

13. The only dispute is in relation to whether the accused was the person who attacked Moleen. The issue therefore is one of identification. Has the State provided evidence to support this element of the offence? First, I accept some aspects of Moleen's evidence are contradictory. In her evidence in chief, she said she was going to Peiwi market that morning. In cross-examination by Mr Kua, she said she was going to Banana Block market. However, I am not satisfied that the contradiction is sufficient to render her evidence incredible and unreliable because in re-examination, she explained that Peiwi market and Banana Block market are the two names for the same market because Banana Block market is located at Peiwi.

14. The second contradiction is, in her evidence in chief, she said she left her house at Warakongkong settlement at 7 to 6 in the morning but in cross-examination by Mr Kua as to when she left the house at Warakongkong settlement that morning, she said at 5 o'clock. Again, I am not satisfied the contradiction is sufficient to render her evidence incredible and unreliable because further on in cross-examination by Mr Kua, she said the correct time she left the house at Warakongkong settlement was between 5 o'clock and 6 o'clock in the morning.

15. Thirdly, in her evidence in chief, she said the accused walked 5 metres away from her when she saw him. In cross-examination by Mr Kua, she agreed with the suggestion that in Vanimo, 5 o'clock in the morning would still be dark and as such, she would not have seen the accused. Again, I am not satisfied the contradiction is sufficient to render her evidence incredible and unreliable because first, it is only one aspect of her evidence that seemed contradictory. Secondly, even then, she said she was attacked between 5 o'clock and 6 o'clock. This means, the attack did not take place at exactly 5 o'clock in the morning. Thus, if it was 5 o'clock in the morning, it may be true that it was still dark but if it was between 5 o'clock and 6 o'clock, then there is a possibility there was sufficient light.

16. These contradictions were apparent from Moleen's statement dated 25th July 2009 which was also tendered and marked exhibit "P6". 

17. Finally, in her evidence in chief, she said the accused asked her to be his girlfriend. She further stated that the message was relayed to her by a girl and not the accused directly. It was suggested in submissions by Mr Kua, because the accused had not seen and spoken to Moleen in person about his intention to befriend her and that the message was relayed by another person, Moleen did not know or had seen the accused. The submission is suggestive of a mistaken identity. But there is also evidence from Moleen that she has seen the accused around Vanimo town and shops before the attack. This evidence suggests that she was identifying a person she had seen before, more so recognising the accused.

18. The second aspect of the inconsistency and contradictory evidence of the State witnesses is in relation to evidence of Moleen and Judith. When both witnesses' evidence are compared, I accept some aspects of their evidence are inconsistent or contradictory. For example, Moleen said in her evidence in chief they carried one esky while Judith Harris said they carried two eskies. Judith said she carried one and Jenicar Fron carried the other. In my view, the two different versions are insufficient to render the evidence of these two witnesses incredible and unreliable because most of the evidence remained intact.

19. The next example is in relation to the name of the place they were heading to that morning. Moleen said they were going to Peiwi market while Judith said they were going to Banana Block market. As noted above, and also from Moleen and Judith's responses in cross-examination, Peiwi market is the same place as Banana Block market. In my view, there is no contradiction there. The other example is, in her evidence in chief, Moleen said there were two girls who walked with her that morning. They were Jenicar Fron and Judith Harris. She did not mention a third person by the name of Fide. In her evidence in chief, Judith said she walked with Moleen, Jenicar Fron and Fide. Again, in my view, the two different versions are insufficient to render the evidence of these two witnesses incredible and unreliable because most of the evidence remained intact.

20. The final example of contradictory evidence of Moleen and Judith is in relation to the person to whom the accused resided with at Peiwi. In her evidence in chief, Moleen said the accused lived with his father at Peiwi beach while Judith in her evidence in chief said the accused lived with his uncle by the name of Wilson at Peiwi beach. Be that as it may, I am not satisfied the contradictory evidence taints the whole evidence of these two witnesses because it is not relevant to the issue of identification. What is relevant is whether the two witnesses saw the accused walking behind them on the road that morning and as far as I am concern, they said they saw him.

21. For these reasons, I am not satisfied that Moleen's evidence and Judith's evidence are contradictory such that they are so lacking in weight and credibility that they are unreliable.

22. In relation to Mr Kua's submission that the evidence of Moleen is vague, it is clear from her evidence as set out above that it was between 5 o'clock and 6 o'clock when she and the girls left the house for Peiwi market. She said it was almost 6 o'clock. On the way, a man approached them from behind and she saw that it was the accused and she said good morning to him but he did not reply. They walked on and he followed them until they reached Transmitter when he picked up stones and threw at them. They continued walking and he came up and attacked her. He hit her on her face with a stone and she sustained injuries and when she fell, he swung a kitchen knife between her legs. It penetrated her shots, pants and vagina. She sustained a deep wound to her vagina. 

23. In my view, the kind of evidence Moleen gave cannot be vague. It is in fact precise and detail. It recorded what had happened when Moleen and the girls left the house at Warakongkong settlement and when they had arrived at Vanimo sawmill. It clearly established a man followed them on their way to Peiwi market and at Vanimo sawmill, this man attacked Moleen. This man has been identified as the accused. For these reasons, I reject Mr Kua's submission that the evidence of Moleen is vague.

24. I agree with Mr Umpake's submission that matters concerning credibility of witnesses are not relevant in a no case submission and I should ignore them. That means, I will ignore Mr Kua's submissions that Judith Harris is not a truthful and reliable witness because she was coached to give evidence against the accused: see Roka Pep (No 2)'s case (supra) at 330, per Kapi, DCJ. 

25. It also means her evidence in relation to a man attacking Moleen at Vanimo sawmill and subsequently escaping to DCA compound where he was apprehended when their relatives came to their rescue in a motor vehicle corroborates the evidence of Moleen that she was attacked by a man at Vanimo sawmill that morning.

26. For these reasons, I am not satisfied the evidence of the two State witnesses are so tenous, incredible or have been discredited to such an extent that they are so lacking in weight and reliability that the accused could not be lawfully convicted and the case must be stopped here. I reject the defence's no case submission based on the second principle of the Roka Pep (No 2)'s case (supra).

27. Having rejected the submissions of the defence in relation to the vague, inconsistent and contradictory evidence of the two State witnesses, and also the credibility of witnesses, this leaves Moleen and Judith's evidence that they saw the accused walk behind them on the road between Warakongkong settlement and Vanimo sawmill. They said he was the person who attacked Moleen. He must therefore be called to give his side of the story.

28. Further, I am satisfied there is evidence to support the essential elements of the offence of unlawful grievous bodily harm under the first principle of a no case submission in Paul Kundi Rape's case and Roka Pep (No 2)'s case (supra). First, both witnesses said they saw the accused, secondly, the accused assaulted Moleen by first hitting her with a stone on her face and secondly, stabbing her with a knife on her vagina. Thirdly, there was no lawful reason for him to assault Moleen.

29. For the foregoing reasons, I am satisfied the State has established a prima facie case of unlawful grievous bodily harm against the accused. I dismiss the no case submission and order the accused to answer the charge forthwith.

Ruling accordingly.

____________________________________
Acting Public Prosecutor: Lawyers for the State 
Paul Paraka Lawyers: Lawyers for Accused