Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kin [2017] PGNC 304; N6979 (12 May 2017)

N6979

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1320 OF 2014

THE STATE

V

ERIC KIN

Wabag: Auka AJ
2017: 15^th, 16^th March & 12^th May

CRIMINAL LAW – Unlawfully causing grievous bodily harm – Trial

CRIMINAL LAW – Trial – Issue of Involvement – Disabled hands as reason for Non Involvement – Issue on Date of Commission of offence – Issue on date of Preventive Order issued.

CRIMINAL LAW – State witnesses untruthful - Evidence not credible – Evidence against logic and common sense test - Accused Not Guilty – Acquitted and discharged - Criminal Code, S.319

Case Cited:

The State v. Cosmos Kutau Kital (2002) N2245
The State v. Titeva Fainoko [1978] PNGLR 262

Counsel:

Mr. Emmanuel Thomas, for the State
Mr .Jeffery Kolowe, for the Accused

DECISION ON VERDICT

12^th May, 2017

1. AUKA AJ: The accused stand charged that he on the 7^th day of April, 2014 at Lukitap, Wabag District, unlawfully caused grievous bodily harm to one MACKSON JAMES Contrary to S.319 of the Criminal Code.

2. Upon arraignment, the accused pleaded not guilty and a trial was conducted.

3. The brief facts of the case were that on Monday 7^th April, 2014 between 2:00 pm and 3:00 pm the accused Eric Kin was at Lukitap Village market in Wabag District, Enga Province. Around the mentioned time the accused got into an argument with Mackwin James over allegations that he and the accused was having an affair with Mackwin’s wife namely Ossy. The argument turned into a fight. The accused was armed with a bush knife and Mackwin James armed with a coffee stick. The victim Mackson James seeing that they were both related to each other decided to intervene and break-up the fight which he did. However while standing there the accused swung his bush knife in the direction of the victim’s neck and the victim raised his left hand to block the bush knife resulting in him sustaining injuries to his left wrist and fore arm.

4. The issue is whether the accused was the person responsible for cutting the victim thus causing the injury.

5. In order to prove its case, the State tendered the following documents into evidence by consent of the Defence Counsel:

1. Record of Interview – (Exhibit “A”);
   2. Medical Report of Dr. Peters dated 16^th July, 2014 (Exhibit “B”). The Doctor in his Medical Report stated that Patient Maikson James was seen and treated at the Accident and Emergency Department with bush knife wound to his left forearm involving bone and tendons on the 1^st of April, 2014;
3. A Preventive Order issued by Village Court Magistrate Tonde Elyane of Tunbam on 2/04/14 to Erick Kiaka of Lukita (Exhibit “C”).
   

6. Apart from the documentary evidence the State called two witnesses. They are Mackson James and Mackwin James.

7. The evidence of Mackson James is that he is from Lukitap Village, Wabag District in Enga Province. He is aged 28 years and married with 3 children. He lives in the village. He said on the afternoon of 7^th April, 2014 at about 2:00 pm he was at Lukitap market and there were many people some of whom were there to attend village court hearings. He said accused Eric Kin was also at the market. Whilst he was there he saw Mackwin James and Eric Kin were arguing over an allegation that Eric Kin was having an affair with Mackwin’s first wife by the name of Osi. During the argument Mackwin told the accused to pay compensation and accused said No. He said Mackwin was holding a coffee stick whilst Eric Kin held a bush knife and were about to fight. As he is related to both of them he approached them and told them not to fight and he started pushing his brother Mackwin while some other boys took Eric Kin away. As he was pushing Mackwin away he heard someone calling out to him that a person behind him was going to cut him. Suddenly he realised that he had a cut on his hand. Then he turned around and saw the accused holding a bush knife. When he realised that his hand was cut he became unconscious. Some people took him to Lakepanda health centre and later was taken to Wabag General Hospital and admitted for one (1) week. He was discharged after a week.

In cross-examination he was asked what did other people say to you and he said they said that somebody is going to attack you so watch out. He was then asked, at that time which direction was he facing and he said he was facing Mackwin James who was pushing him. It was put to him that his back was to the attacker and he said yes. Furthermore he was asked to name the person who called out to him to watch out and he said maybe it was Mackwin James who called out to him to watch out. In cross-examination he was asked whether it was the accused who cut him and he said I think it was Eric Kin. However later when he was asked whether he agreed that because he gave his back to the accused, he didn’t see the person who cut him. He replied and said yes he didn’t see. It was put to him in cross-examination that accused did not cut him because his hands were disabled at that time and he said his left hand is good.

It was further put to him that in 2012 the accused sustained injuries to both his hands and therefore could not use them and he said No, his left hand was good. When it was further put to him that it was a group of men that attacked him and not the accused and he replied and said No Eric held the knife in his left hand and cut him. It was further put to him in cross-examination that accused did not cut him because he’s hands were disabled at that time and he said Eric’s left hand was good. When it was further put that the accused had injury on his right hand, he replied and said the accused sustained injury after he had a fight with his brothers. He was further asked which hand did he sustain injury on during that fight and he said right hand and both legs. He was asked are you sure that it was Eric Kin that attack you and not other boys and he said Mackwin James warned me that he is going to cut you so I raised my hands. He was further asked if you had your back at Eric Kin how do you know that it was Eric Kin who cut you and he responded and said Mackwin James told me that somebody is cutting you and so I realised that someone is attacking me. Then he was asked whether he is sure that the incident happened on the 7^th April, 2014 and he said yes it happened on 7^th April, 2014.

8. The evidence of Mackwin James is that he is from Lukitip Village in Wabag District of Enga Province. He is 34 years old and married with 2 children from his second wife. He completed grade 8 standard of education and left school. He said he was married to his first wife by the name of Osi and divorced her. He said on the afternoon of 7^th April, 2014 at about 2:00 pm he went to attend a village court case involving the accused who had an affair with his first wife. At the market he told the accused that he should pay compensation to him for having an affair with his first wife. When accused heard that he responded and said: “who are you that I will pay compensation, you are nobody” and that provoked him. After the accused said that the witness picked up a coffee stick and approached the accused who was holding a bush knife and they were going to argue and fight. The witness said his brother Mackson James and others approached them and told them not to fight. Then Mackson pushed him backwards. Others who were there took the accused away to the side. But accused came back and when he saw him he told Mackson there he comes again and warned Mackson that he is cutting you and suddenly he saw accused hold a knife in his left hand and swung the knife from his side direction and cut Mackson’s left hand and he ran away. He said next day the accused went back to the village and the village court issued a preventive order (Exh “C”) against the accused not to go back to the village and cause any interference. He said prior to this incident he had argued with the accused many times and there was animosity between them. The witness said the animosity was over his (witness) brothers cutting the accuseds both hands. In cross-examination when it was put to him that he was angry with the accused for having affair with his wife, he said yes. When it was put to him that it was others in the public that attacked his small brother he said he didn’t receive any injury. It was his small brother who received the injury.

Furthermore, it was put to the witness that accused wasn’t holding a bush knife on that day. In reply the witness said the accused was well prepared and he was the one who had an affair with his wife. Then it was put to witness that at the time of the alleged incident the accused had difficulty in lifting the bush knife and swinging it. He replied and said he (accused) sustained injuries to his right hand and both of his legs and minor injury to his left hand. It was further put that because of the injury on his left hand, the accused couldn’t work well with his left hand and in reply the witness said that because accused sustained injury to his right hand only he do his work with his left hand. Then when the witness was asked whether he is sure that incident happened on 7^th April, 2014 he said yes. In cross-examination the witness was asked to tell the court of the date on which the preventive order (Exh “C”) was issued and he said it was on 2^nd April, 2014. It was put that if the preventive order was made on 2^nd April, 2014 how is it that the incident happened on 7^th April, 2014. In reply the witness said I know very well that the incident happened on 7^th April, 2014. The person who wrote the preventive order must have mistaken by writing the wrong date.

9. For the defence the Accused gave sworn evidence and totally denied cutting the victim with a bush knife. He testified that he was at the Lukitap village market but he did not carry a bush knife and did not use any bush knife to cut the victim Mackson James on the 7^th April, 2014. I observed him to be in total disagreement that he was armed with a bush knife and cut the victim. He testified in his evidence that both his hands were injured and as such did not hold a bush knife on 7^th April, 2014.

Mr Kolowe in examination in chief asked the accused to explain how he received those injuries on his hands and he said on 15^th May 2012 there was a fight involving his cousins who were drunk and acting disorderly at the market place and as he did not accept their behaviour he belted them and they retaliated by cutting both of his hands and that’s how and why he received those injuries on his hands which he still had them on 7^th April, 2014.
He went on to say that due to the injuries on his hands, he doesn’t hold or carry heavy objects in his hands such as a bush knife.

10. In Court Mr Kolowe handed a bush knife to the accused to demonstrate in the court whether he can or can’t hold the bush knife. When the accused held the bush knife it fell easily from his hands because the hands most particularly his fingers wouldn’t hold the bush knife firmly. The Court gives Judicial Notice to that demonstration in court.

11. In relation to the Preventative Order (Exhibit “C”) he was asked in cross-examination why would the village court issue the Preventive Order if you did not do that and he said: “I was not given that Prevention Order”. He went further and said: “That Preventive Order is for Eric Kiak, not Eric Kin”. Further in Cross examination he was asked the Prevention Order is in relation to an affair you had with Mackwin James wife, isn’t that the reason why there was a hearing at Lakitip Market and he said that is not true.

In cross examination it was further put to him that if he was at peace with his cousins (victim & his brother) they would not lie to make allegations against him, correct? He said I don’t know the reason, I was surprised. Then in Re-examination he was asked if you were at Peace with the community, the village court magistrate would not have issued a Preventive Order, what do you say? He responded and said: “Those who issued the Preventive Order against me, they can come to court and tell the court what I have done”. Further in Re – Examination Mr Kolowe asked the accused: “Where you served the Preventive Order? He said No. He was further asked Are you aware that there is a Preventive Order against you? He said No. He was further asked “The Preventive Order against you is it in relation to an affair between you and Mackson’s wife and he said I can’t think about a time when I had an affair with his wife.

12. I have briefly set out the evidence of the two State witnesses as well as that of the accused and after analysing their evidence together with each of their demeanours in the witness box, I must say that I found accused demeanour as good in that I did not find any trace of a witness either lying or being evasive. The accused impressed upon me as a truthful witness. In the circumstances I find the accused as a truthful witness and his testimony credible. Accordingly I accept his evidence as credible.

13. For the State witnesses I closely observe their demeanours and I found traces of witness lying and been evasive and also giving inconsistent stories. Example of first witness been evasive in his evidence is as follows: Firstly when he was asked as to who said to him that somebody was going to attack him, he said other people said that. Then when he was asked again to name the person or persons who called out to him to watch out, his answer was maybe it was Mackwin James who called out. Secondly when it was put to him in cross-examination that accused did not cut him because his hands were disabled at the time, he said Eric’s left hand was good. Then when it was further put to him that accused had injury on his right hand and he said the accused sustained injury after he had a fight with his brothers. Then when he was asked on what hand did the accused sustained injury on during that fight and he said on accused right hand and both legs. Thirdly when he was asked whether he was sure that it was Eric Kin that attacked him and not other boys and he said Mackwin James warned me that he was going to cut you so I raised my hands. Then when he was further asked, if you had your back towards Eric Kin how do you know that it was Eric Kin who cut you and he answered and said Mackwin James told me that somebody is cutting you so I realised that someone attacked me.

Example of his inconsistent answer is as follows: Firstly he was asked whether it was the accused who cut him and in response he said yes I think it was Eric Kin. Then later when he was asked whether he agreed that because he gave his back to the accused, he did not see the person who cut him. He replied and said yes, he didn’t see. Then he was asked whether he is sure that the incident happened on 7^th April, 2014 and he said yes it was on 7^th April, 2014.

14. Some example of the second witness been evasive and giving inconsistent answers is as follows: Firstly when it was put during cross-examination that it was others in the public that attacked his brother and in his reply the witness said that he didn’t receive any injuries rather it was his brother. Secondly, when it was put to him that the accused wasn’t holding a knife on that day and in reply he said the accused was well prepared and was the one who had affair with his wife. Thirdly when it was put to him that at the time of the alleged incident, the accused had difficulty in holding a bush knife and swinging it. In his reply the witness said the accused sustained injuries to his right hand and both of his legs and minor injury to his left hand. Fourthly the witness said that prior to the incident he argued with the accused many times and there was animosity between them over his own brothers seriously cutting accuseds both hands. Fifthly when it was further put to him that because of the injury on accused’s left hand, he could not work well with his left hand and in reply the witness said that because accused sustained injury to his right hand only, he do his work with his left hand. I note that this evidence is inconsistent with his earlier evidence that because accused received injury to his right hand only and do work with his left hand. I note also that this evidence contradicts the evidence of the first state witness Mackson James who said that accused’s left hand was good and was never injured.

15. From the above evasive and inconsistent stories in the state witnesses evidence. I find both witnesses as untruthful witness. Also I find both of them not credible and their testimonies not credible. Accordingly I don’t accept their evidence as credible.

16. Beside finding their oral testimonies not credible, the documentary evidence most particularly the Medical report (Exh “B”) and the Preventive Order (Exh “C”) also go against their sworn evidence most particularly the dates on which the offence was committed and the date on which the Preventive Order was issued.

17. The two witnesses in their sworn evidence were adamant that accused cut victims hand on 7^th April, 2014. The Medical Report (Exh “B”) shows clearly that the victim Mackson James was received and treated at the hospital on 1^st of April, 2014. I consider and find that the stories of the two witnesses as a major contradiction with the Medical Report and as such operates against Logic and Common sense test. Therefore I further find their evidence unreliable and reject their evidence.

18. Similarly the two State witness in their evidence said that the Preventive Order (Exh “C”) was issued by the village court on 7^th April, 2014. However the date written on the document is 2^nd April, 2014. Again I consider and find this evidence as another major contradiction to the evidence of the state witness and further suport my finding that their evidence is unreliable and reject their evidence.

19. In the case of The State v Cosmos Kutau Kitawal (2002) N2245, His Honour Kandakasi J said quote:

“Logic and Common Sense play a major part in accepting or rejecting evidence and the guilt or innocence of an accused person. Evidence going against any Logic and Common Sense are unreliable. Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected”.

20. Beside the documentary evidence there is some evidence of some animosity pre-existing the incident which in my view have caused the witnesses to give false evidence against the accused. Accordingly I find that the two state witnesses have appeared in court and falsely testified against the accused.

21. One other important aspect of the case, I also consider is the date alleged in the Indictment which I consider is an essential part of the alleged offence against the accused which has not been proved.

22. In The State v Tivea Fainoko [1979] PNGLR 262, His Honour Prentice CJ, sitting alone held;

“The Common Law Rule is that a date specified in an Indictment or information is not a material matter unless it is actually an essential part of the alleged offence suitable and applicable in Papua New Guinea”.

23. As I have stated the prosecution have not proved that the accused committed the offence on the date alleged in the Indictment and as such have left the state case not proved.

24. In view of the court finding State’s witnesses untruthful and their testimonies not credible, I find their evidence unreliable and reject them. On the other hand I find the evidence of the accused reliable and accept it as credible.

25. In the end I find that the prosecution has failed to prove its case beyond reasonable doubt and I find the accused not guilty and acquit him on the charge of unlawfully assault causing grievous bodily harm.

I Order that accused’s bail money be refunded.

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