N5910

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 778 of 2014

THE STATE

-v-

SAMUEL LAWRENCE
(NO. 1)
Respondent

Lorengau: Geita J
2015: 13, 16 March

CRIMINAL LAW –Trial –Plea of not guilty – Attempted murder – Evidence on trial – Oral and documentary - Criminal Code s.304.
CRIMINAL LAW – Victim slashed on hand, back and head with a bush knife - deliberate act to cause harm and maim – Victim's evidence more credible over the accused's evidence - no motive to lie in court – Motive and Intention to harm present -
CRIMINAL LAW – Defence of unprovoked assault not made out and therefore not available to the accused – Accused not a witness of truth - Guilty Verdict returned -Criminal Code s.304.

Cases cited:

None

JUDGMENT ON VERDICT

Counsel

H Roalakona, for State
J-M Ainui, for accused

16 March 2015;

1. GEITA J: The accused was indicted under section 304 of the Criminal Code for the attempted unlawful killing of his uncle Ivan Pasiu on 9th February 2014 at Wacheleny village, Manus Province. 

Trial

2. The victim and the investigating officer were the only witnesses called. Three sets of documents tendered into court by consent include the Record of Interview marked Exhibit A (a) (b) in English and Pidgin and two sets of Medical Reports Marked Exhibits B and C respectively. 

State Evidence in summary

Witness 1 Ivan Pasiu

3. The victim testified of being approached at sea by the accused accompanied by his brother Sebastian Lawrence, Russell and John in their powered dinghy on the afternoon of 9 February 2014. He said they initially paddled their dinghy towards him and his friend on the reef. At the time Ivan was fishing on the nearby reef with his friend Raphael. As the accused and his friends came nearby the accused lowered the outboard motor into the sea with his left hand and with his right hand he started the engine. He then stood on the stern of the dinghy, raised his bush knife in the air and shouted at me saying that this was my death as he would cut my head. The victim said the accused called out to Raphael not to jump overboard saying they were there only to kill the victim. 

4.	The victim said being confronted in that manner he had no option but to reach for his spear in order to ward off his attackers away. He said as they steered away from him he loaded his spear gun. They began pelting him with sticks and stones and in the process his spear drifted away from him. By that time they approached him from his back armed with the victim's spear which had drifted away from him. The victim said Samuel Lawrence threw the spear at him and he caught it. Again the accused threw the paddling pole at him and he also caught the pole. 

5.	The victim said as he desperately tried to get away from his attackers by paddling to his brother at the nearby point he was being pelted with stones and sticks. In his desperation his canoe capsized. He said Samuel Lawrence then left the motor boat and jumped into the sea armed with a bush knife in hand. He swung the bush knife at the victim but he blocked the blow with his left arm. The victim said when he cut his hand he then speared him with his fishing gun. 

6.	With no other option available to him he swam towards the accused dinghy and attempted to climb on board. In the process Russell Lawrence chopped the back of his head and back several times. (Witness showed court healed scarred marks on the back of his head and several striped scarred marks on his back.)

7.	In desperation he wrestled with Russell and threw him overboard. He grabbed the engine and called out to James and Sebastian who also jumped overboard. The victim than used their dinghy and motored to his brother's place and was later taken to Peli Powai Health Centre for medical attention. He was hospitalized at Lorengau General Hospital for a further two months. 

8.	In examination in chief the victim said his attackers were his nephews and he does not know the reasons why he was attacked whilst fishing out at sea.

9.	In cross examination the victim denied that he was approached over an earlier incident involving the accused's sister. Cross examination continue:-

Q. 10 When the accused approached you in his boat you held a spear and threatened him?
A. They were my tools to look for fish.
Q. 11 You pointed fishing gun at accused and aimed at him?
A. As they approached me in their speed boat, they were going to ram me so I pointed fishing gun at them.
Q. 12 The accused tried to remove the fishing gun by using the pole? 
A. No.
Q. 13 He did not succeed and so you shot him with the fishing gun?
A. He came close to me, cut my head and that's when I raised my arm and grabbed the knife.
Q. 14. You shot him and spear came through his neck?
A. Yes. I was in the sea and he tried to cut me so I speared him.
Q. 16 I put to you that you first speared him and he cut you?
A. No. 
Q. 19 Fight was between you and accused only correct?
A. No.

Court Question

1. When you tried to get into the boat was that on the reef or out at sea?
A. We left reef and it was in deep sea.

Record of Interview

10.	The accused denied making the first move to cut the victim on his hand. He said he cut the victim in retaliation after being speared. He admitted throwing sticks and stones at the victim and was accompanied by Russell, James and Sebastian. He also admitted holding onto the motor of the boat. He further denied calling out to the victim that he would kill him with his bush knife. 

Medical Report

11.	The two reports confirm receiving the victim at Lorengau General Hospital Surgical Ward on 9th February 2014 and discharging him on 26 February 2014. The reports confirmed the injuries suffered by the victim and attributed the wounds to those inflicted and consistent with the use of a sharp object. . 

The Police statement 

12. 	His role was to confirm that he was the investigating officer and charged three other persons for this crime including the accused but they were acquitted by the district court except the accused now before court.

Defence Evidence in summary

Witness 1. Samuel Lawrence

13.	The witness testified of paddling out to the mouth of the river with Russell, James and John when they came across two people paddling towards them. He said it was far and he could not recognised them but said one was Raphael who was sitting at the back and the other Ivan with his head covered seated in front. As the two men paddled closer he recognized one to be Ivan Pasiu and questioned him about an earlier incident involving his sister. 

14.	The accused said the victim aimed at them with his fishing gun so he took a pole and attempted to hit the fishing gun away from him without success. He was shot in the neck. He said as he was about to fall into the sea he got his bush knife and sank to the bottom. As he surfaced he said he saw the victim jumped into the sea and swam after him. The accused said he saw the floating spear and swam to retrieve it. At that time he was shot the second time by the victim. 

15.	The accused said as the victim attempted to break his head he cut his head forcing him to swim towards his canoe. He said he held him on the shirt collar and cut him on the back of his head. The victim than called out to him to stop as he was his nephew and so he let go. He said the victim got into his boat and motored to his village. He later swam to the shore.

16.	In examination in chief he said his friends jumped into the sea and swam to the shore leaving Russell behind in the boat who saw all that unfolded. He said he swam to a rock nearby and removed the spear from his neck and swam home. His brother Russell took him to Peli Powai Health Centre where he was later referred to Lorengau General Hospital.

17.	In cross examination the accused denied meeting Ivan and his friend Raphael on the reef and further denied calling out to him. He said the victim and his friend were moored some 20 to 30 meters away from them. He denied that Ivan and his friend were fishing on the reef that day. Cross examination continue:-

Q. 22. So you raised your bush knife and attempted to cut the victim when he raised his hand and was cut on hand. At that point in time he speared you? 
A. No.
Q. 23 You wanted to kill him because he assaulted your sister?
A. No.
Q.24 You went out with intention to kill him because you were not happy with him?
A. No.
Q.25 You and your friends cut Ivan Pasiu causing injuries on his back head?
A. Not all of them only myself. 
Q. 27 Because you wanted to kill him?
A. No intention to kill him, he speared me the second time and so I cut him. 

18.	Court:

Q.1. When all these were happening where were your friends?
A. Sebastian and James swam to the shore and Russell hid in the boat when he pointed gun at me. 

Defence submissions 

19.	The thrust of defence contention is the accused acted in self defence from an unprovoked assault: Section 269 of the Criminal Code. Ms Ainui conceded that there was a fight between the accused and the victim however when the accused found himself in a life threatening situation, he reacted the way he did and cut the victim in self defence. She argued that her client's evidence was consistent and impressive and should be believed. She submitted that the court return a verdict of not guilty and have her client acquitted. 

State submissions

20.	Ms. Roalakona submitted that the case was hinged on the demeanour, creditability and consistency of evidence before court. She submitted that the State had successfully proven all elements of the charge as the State had the burden of proving all the elements of the charge beyond reasonable doubt. She submitted that the accused was not a witness of truth and should not be believed as he gave inconsistent and implausible evidence. Having to swim 200 meters with a fishing spear still lodged in his throat highly implausible she said. By saying this I am not downplaying the fact that human endurance in times of danger and survival are remarkable and can come to play in the accused's case as suggested by Ms Ainue. However this time around I find it hard to believe in light of inconsistencies and lies detected in the accused's evidence. Ms Roalakona said this was no ordinary attack: the victim was attacked out in the sea, on the reef with no other means of escape. The intention of the accused and his friends to kill the victim further manifested under these circumstances. She said the accused was not a witness of truth and his evidence disregarded ahead of state witness. A guilty verdict to be returned instead Mrs. Roalakona submitted. 

The Law:

21.	Section 304 of the Criminal Code creates the offence of attempted murder and it is in the following terms:

A person who attempts unlawfully to kill another person or with intent unlawfully to kill another person does any act or omits to do any act that is his duty to do, the act or omission being of such a nature as to be likely to endanger human life is guilty of a crime. 

Penalty: Subject to Section 19, imprisonment for life."

Elements

22.	The mandatory elements being 1. A person who 2. Attempts unlawfully 3. With intention 4. kills another person.

Findings

23.	The primary issue before me is to make findings on whose version to believe: the victim's version of events or the accused version of events as no other witnesses were called. I shall attempt to do this by a simple elimination process under these headings: the elements of intention, identification, motive; demeanour and the quality of evidence.

Elements

Unlawful assault

24.	It is not disputed that the accused also took part in unlawfully assaulting the victim by slashing him with the bush knife as he was in the sea. There is also ample evidence that the accused brother Russell slashed the victim on his head and back as he struggled to alight the dinghy heavily wounded. Inferentially therefore it is open for me to draw conclusions that the elements of unlawful assault and intention are made out. Although the accused maintained that he was the only one who assaulted the victim, his evidence did not find corroboration in the evidence of the victim. The victim told court that as he attempted to climb into the accused dinghy, Russell slashed him with a bush knife on his back and head. Furthermore he admitted in cross examination that James and Sebastian jumped overbroad and swam to the beach leaving Russell behind in the dinghy. It follows that the accused and his brother Russell were heavily involved however since this indictment is for the accused he must be held accountable for this crime. His flimsy defence of being attacked or threatened first causing him to slash the victim is not believed. In my view a recommendation also for Russell Lawrence to be investigated and prosecuted for the same crime appears to be in order. 

Intention

25. 	The element of intention to kill in my view is easily made out. First up is that the accused and his friends confronted the victim on the reef as he was fishing by sneaking upon them silently by paddling towards them. Secondly, as they got close to them the accused positioned his dinghy with the stern facing the victim and attempted to ram his canoe. Thirdly, the accused stood on the stern of his dinghy and called out to the victim that he would kill him. Fourthly, he admitted slashing the victim in direct evidence and in cross examination. The accused did not offer any convincing evidence negativing the victim's evidence. His evidence was inconsistent, too general in nature in my view and more tailored to responding to the victim's evidence of events. It follows that the element of intention is made out and the accused held responsible. 

Motive

26.	The identification and motive of the accused likewise in my view is easily made out. There is evidence that he harboured a grudge against the victim over an earlier incident involving his sister and the victim. When the situation presented itself with the victim isolated and fishing on the nearby reef he approached him and carried out his harboured grudge in company of his brother Russell and two friends, James and Sebastian. In the absence of any evidence to the contrary I have no reason to doubt and find the presence of motive and intention in this attempted murder. I am not convinced that the accused is a witness of truth. 

27.	There is evidence that when the victim's canoe capsized, he was helpless in the deep sea when the accused armed himself with his bush knife and jumped into the sea to attack him. The accused's version of being shot first by the victim in the first instance lacks corroboration and not credible in my view. I do not detect any evidence of the victim being the aggressor, save the accused. He was out fishing and minding his own business when the accused stealthily approached him. Obviously with a motive and intention to cause him harm and harm he did. 

Demeanour of witnesses

28.	Having observed the demeanour of the victim he gave his evidence in great detail in the way they unfolded with lots of passion and clarity. All along demonstrating and showing to court the scarred wounds on his head, hands and back. He remained calm and focused in giving his evidence from his chests and told court of events as they unfolded which culminated into his unlawful wounding. 

29.	The same cannot be said for the accused. In my view he appeared to me to be tensed up and very evasive during evidence and cross examinations. Specific details of evidence were omitted and only adduced during cross examination and re-examination, unfortunately which turned out detrimental to his cause. I draw inference on his evidence that only Russel remained in the dinghy. He remained evasive at times and showed signs of reluctance to answer questions. Again I draw inference from his answers in cross examination: he denied approaching the victim on the reef? 

30.	Furthermore the accused evidence of being speared or shot twice by the victim with his fishing spear did not find corroboration in his record of interview. There is no mention of this important assault in his record of interview, giving rise to this vital piece of evidence being concocted and of recent invention. Furthermore "the shirt collar pulling incident" did not find corroboration in his record of interview pointing to the evidence being of recent invention. Although the victim admitted shooting the accused in the neck he said he was in the water when attacked and he took evasive action. This piece of evidence again finds corroboration in the accused version in that he armed himself with a bush knife and fell into the sea. He jumped into the sea when the victims' canoe capsized leaving him vulnerable and easy target. I am therefore not convinced that he is a witness of truth and his evidence is not to be believed. 

31.	Might I add here as an afterthought that the accused's chance of being let off the hook was there for his taking: It was open for him to call his brother to corroborate his evidence however he chose not to do that? 

Self-defence against unprovoked assault.

32.	In order for this defence to be invoked and available to the accused, there must be credible evidence to show that he was indeed placed in a precarious situation and defended himself. All that is available before the court was his version of being approached by the victim and when questioned about an earlier incident involving his sister the victim pointed the spear in his direction. I see no provocative or life threatening encounter warranting the fishing gun to be pointed at his direction. Common sense and logic would dictate that those exchanges of words, said to be threatening by the victim indeed were scary to the receiver, i.e. the victim and not the other way around. None of those precarious situations was shown to the satisfaction of this court during evidence. What is indeed available is that when the accused found the victim floundering in the sea after his canoe capsized the accused armed himself with the bush knife and went after him. That was when he was shot. That scenario in my view is more plausible. I cannot detect any nor infer any life threatening situation facing the accused. This defence is therefore not available to the accused and is ruled out.

33.	Applying the above findings to the facts of this case, I have no doubt in my mind that the accused was responsible for the attempted murder of the victim. All possible circumstances that may give rise to the shifting the blame to the victim are ruled out in my findings. Furthermore any plausible evidence such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused is ruled out. The guilt of the accused in my view is the only rational inference that the overall circumstances can enable the Court to draw from. In the final analysis I am therefore satisfied beyond reasonable doubt that there is ample credible evidence, express or inferential that connects the accused to the attempted murder of the victim on 9 February 2014 at Wacheleny village. 

Verdict

34.	Accordingly, I return a verdict of guilty against the accused and have him convicted. A warrant of commitment will be issued for your detention until time of sentence. 

Verdict: Guilty
________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused