N10627

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(FC) NO. 1367 & 1372 OF 2021

THE STATE
-v-

SMITH KOP & ISRAEL BILL

Waigani:  Batari J
2023:  19th July, 22nd, 23rd August, 6th September

CRIMINAL LAW – Evidence – unlawful wounding – unlawful confinement – four serving members of the Police Force charged with unlawful wounding and unlawful detention of victim - general denials – presence – whether sufficient.

Cases Cited:
No case cited.

Counsel:
Mr. J Siminji, for the Prosecution
Mr. J Kolowe, for the Defence 

6th September 2023

1.	BATARI J:  This is the balance of a joint trial of the remaining accused, Smith Kop and Israel Bill, on the charges of unlawful wounding and unlawful deprivation of liberty. The accused Fitler Tago and Smaila Hombuafe have been acquitted following a no case submission in a separate ruling.  
2.	On 29th of August 2019, duty policemen assaulted and detained Richard Pagen near Lareva market, Hohola No 2. The defendants have each denied the allegations of unlawful wounding and deprivation of liberty. 

Brief Facts
3.	The allegations constituting the charges are that on the evening of the date in question, between 8.00pm and 10.00pm, Smith Kop, Israel Fanston Bill, Fittler Tago, Smaila Hombuafe and other policemen were at Lareva market in response to disturbances around the area. They parked their vehicle on its incorrect side of the main road, facing on-coming traffic from the opposite direction. 
4.	When Richard Pagen stopped in front of the police vehicle, he enquired of the policeman who had approached him, what the matter was. He was then the acting Chief Ombudsman and introduced himself as such. Mr Pagen also repudiated knowledge of any trouble around his residential area, and that he would know if there were any. The initial pleasantries degenerated into heated exchanges between the policeman and Mr Pagen. The accused Israel Fanston Bill then pulled Mr Pagen out and assaulted him before forcing him into the back of the police vehicle. They then transferred him to Saraga Police Station. 
5.	Police kept him at Saraga Police Station until he was released some hours later. Mr Pagen was bleeding and in pain all along from the ordeal and was brought to Paradise Private Hospital for treatment of a 6cm by 2cm wound to his eyebrow. 
6.	The State says the actions of the accused in assaulting the complainant contravened s.322 of the Criminal Code. It further alleges that when police took him to Saraga Police Station and kept against his will, he was unlawfully detained in contravention of s.355 of the Code.
7.	The state further invokes s.7(1)(a)(b)(c) in alleging, the accused persons aided and abetted each other in committing the offences as principal offenders.
8.	Issue: The principal issues to resolve on the evidence are thus:
•	Whether the complainant was unlawfully assaulted and sustained the injuries because of the assault.
•	Whether the accused persons committed the assault in aiding and abetting each other as principal offenders under s.7 of the Code.
•	Whether the accused persons unlawfully detained the complainant at Saraga Police Station. 

9.	The first State witness was Pastor (Pr) Benjamin Tambi. He is the founder of the Holy Spirit Life Ministry and has been overseer of the Ministry since its inception in 1998. I find him to be reliable and unwavering in his sworn testimony.
10.	Pr. Tambi spoke of accompanying his youth group to Richard Pagen’s home on the date in question for fellowship dinner after the youths did some work for him at Morata. After the program, he accompanied Mr. Pagen to drop-off the youths in his vehicle.  Mr Pagen’s daughter sat with them in the front cabin.
11.	A short distance from Mr Pagen’s residence at Lareva market, a vehicle was parked on their side of the road. At the same time, an oncoming vehicle was approaching so, Mr. Pagen stopped in front of the stationary vehicle. Some policemen alighted from the vehicle and two of them confronted Mr Pagen, alleging he was drunk and on drugs and harangued him for blocking their vehicle. Mr. Pagen apologized and mentioned he is the Chief Ombudsman but, they continued to be abusive and pulled him out of the vehicle. They attacked him and when he tried to intervene one of the policemen threatened to punch him.
12.	Pr. Tambi further testified that he walked to the back of the police vehicle and noted the registration number as BFK 634. When he returned, Mr. Pagen was lying on the road, bleeding. He asked why they were mistreating the Chief Ombudsman, a policeman yelled at him and again threatened to punch him.
13.	Mr. Pagen was then forced into the back of the police vehicle and taken to Saraga Police Station. They kept him there until 3.00am before releasing him. He was then taken to Paradise Private Hospital for treatment.
14.	The witness also spoke of him and others relaying Mr Pagen’s ordeal to relatives and friends whilst following the police vehicle to Saraga Police Station. At the Police Station, a crowd had gathered with many more arriving.  The crowd became rowdy, so police fired warning shots to ward off trouble.
15.	The second State witness Benjamin Leo gave substantively the same sequence of events surrounding the police assault and detention of Mr. Pagen. He was one of the youths in Mr Pagen’s vehicle. They did not consume any alcohol. He also spoke of police assaulting him and the other youths. He saw five policemen but could not identify any of them due to poor lightings. On the way to Saraga Police Station, he relayed messages to relatives. Arriving at the police station, many people had gathered, and police fired shots to disperse them.
16.	This witness exaggerated some aspects of his evidence, particularly in the descriptions of a thing or event. The inconsistencies is not fatal to the State’s case. They are largely on inconsequential peripheral matters.
17.	The complainant Richard Pagen gave evidence next. He is the current Chief Ombudsman. Mr Pagen testified, that on 29 August 2019, a Church youth group from Holy Spirit Life Ministry was at his residence located at section 18, allotment 14, Fig Street, Hohola No. 2, NCD, for fellowship night under the tutelage of Pr. Benjamin Tambi. After the event, he and Pr. Tambi left in his vehicle to drop off the youths, accompanied by his three-year-old daughter.
18.	Approaching the nearby Lareva market, he saw a stationary brown ten seater vehicle on his side of the road facing him. He stopped in front of the vehicle, and the second vehicle that had followed him from his residence stopped at the back. Two more vehicles arrived and stopped, blocking his access. 
19.	The driver of the ten-seater vehicle then approached him and he introduced himself as the Ombudsman. This prompted unsavory retorts from some policemen with remarks that Ombudsman officers are corrupt. 
20.	The witness queried the presence of police in his quiet neighborhood, and asked what the matter was. The altercation escalated into heated exchanges and threats of arrest. He willingly alighted from the vehicle when ordered. But when he got back into his vehicle, the altercation continued. Police became more aggressive and physically forced him out of the vehicle. A policeman walked him to the second 10-seater vehicle and ordered him to board the vehicle.
21.	He tried to open the back door, but it was jammed.  At that instance, one of the policemen punched him on his right eye with a knuckle-glove. Another slapped him on the left side of his face. The policeman with the knuckle-glove punched again on his right eye, causing him to fall unconscious. He was then put in the vehicle amongst eight other detainees. The policeman with the knuckle-glove sat with him at the back of the vehicle.
22.	The police drove him past Hohola Police Station along PNGDF Murray Barracks/Taurama PNGDF Barracks road, stopping briefly at a night marketplace. They continued to Saraga Police Station where a policeman he named as Danny attended to him. He was charged but Danny negotiated settlement between him, and the policemen involved. Around 2.00am his driver drove him to Paradise Hospital where he was treated for his injuries.
23.	The settlement did not take place the next day as planned so, after three days, he lodged the complaint, now the subject of this trial proceedings.
24.	I find the witness to be verbose. He articulated minute details of excesses, peripheral to the central issue and volunteered unnecessary finer details bordering on compassion, opinions and assumptions. Overall, Richard Pagen recollected his ordeal with clarity and was unwavering under cross-examination.
25.	The fourth and last witness, Const. Alfred Kambai testified mainly on his investigations into the complaint by Mr. Pagen.  Const Kambai impressed me as a well informed and knowledgeable investigator. He spoke with confidence, clarity, and sincerity. The crucial part of his evidence is on the undisputed documentary entries in, Exhibit “D’ –  Disposition Sheet.
26.	The disposition sheet was completed by the police unit supervisor before the start of the police operation and submitted to the NCD Central command at Boroko Police Station. The document confirmed the names and details of duty  Task Force members, the vehicle used, the number and type of firearms issued and name of the supervisor of the unit. The particulars are consistent with the other evidence on those matters.
27.	One crucial aspect of Const. Kambai’s evidence that lends consistency to the complainant’s evidence was the conduct of the policemen implicated. 
28.	After the complaint was lodged, the policemen named in the disposition sheet deliberately shirked reconciliation and snubbed directives for them to respond to the complaint. So, the witness applied for the warrants of arrest before the Magisterial Court.  All but one suspect was arrested and detained.
29.	Neither accused persons has responded to that evidence of conduct following a complaint. This adds against the genuineness of their testimonies. 
Evidence: Defence
30.	Both accused elected to give sworn evidence.
31.	In his testimony, Smith Kop spoke of being a member of the NCD Central Task Force Unit based at Saraga Police Station. On the date in question, between 8.00pm and 12.00pm, his team received a call to attend disturbances by drunkards at Hohola 4 Market. They proceeded there and continued to Lareva market at Hohola 2. Again, they dispersed the crowd that had gathered at the dark spots near the market and outside the nearby Banana club.
32.	At Lareva market, he parked on the main road, facing oncoming traffic. He remained in the vehicle while others attended to the drunks. Then a vehicle came speeding towards him and stopped in front of him, almost causing a collision.
33.	He noticed two elderly men in the front cabin with many others at the back. He explained the police presence, but the driver became argumentative. Israel Bill also tried to persuade him to leave but he would not budge. The altercation became intense so, policeman Gideon Deng suggested, they charge him with obstructing police work. They then charged and detained him in the vehicle and proceeded to their base at Saraga Police Station. 
34.	Smith Kop said whilst sitting in the vehicle, he heard a noise when the driver tried to get on at the back door of the vehicle. He later learned the driver had fallen and injured himself whilst trying to get into the vehicle.
 Accused Israel Franson Bill also gave sworn evidence, much in the same vein as that of Smith Kop’s. At Lareva market, he stood guard on a hill while other policemen dispersed drunk. A 5-door vehicle came speeding with glaring head lights and almost hit their parked vehicle.  Smith Kop argued with the driver and he joined them. When the driver kept arguing, he suggested they charge him with obstructing police. Gideon then arrested and charged the driver.
35.	He did not see what happened at the back of the vehicle and did not know that the complainant was hurt until they were at the Saraga Police Station.
Considerations and decision
36.	There are two opposite accounts on the arrest and detention of Mr Pagen and how he sustained the eye injury. One version is that a duty policeman punched him on the eye with a knuckle-glove for no apparent reason. The other is that he fell and injured himself as he tried to get into the police vehicle. 
37.	Both versions cannot be true. One is more reliable and probable than the other. The more credible version is dependent on the honesty, consistency and reliability of the witnesses, and cogency of the witnesses’ testimonies.
38.	At the outset, I am not impressed with the accused persons as witnesses of truth. Both were clearly pretentious and lying under oath. Whilst conceding presence at the scene, they were evasive on the critical issue of how Mr. Pagen received the eye injury, amidst the strong evidence which thoroughly implicated them. They also exaggerated on their unimpressive accounts of faithfully carrying out their police duties in what was clearly an attempt to avoid adverse inferences. I also find their common reference to the complainant as “driver” instead of directly addressing the complainant, intriguing and conceited.    
39.	The conclusion that each defendant has not made out his defence on the balance of probability is unavoidable. So, the State has nothing to disprove on the required standard of proof.   
40.	However, the onus remains with the State to prove the guilt of each accused person beyond reasonable doubt. I have no hesitation in concluding from the whole of the evidence, Mr. Pagen was assaulted and that the assault was carried out by members of the police Task Force unit in the vicinity of Lareva Market.
41.	The accused, Smith Kop and Israel Bill were both at the scene. They were both present when Mr Pagen was being assaulted. I do not believe their presence was by chance or excused under the principles of mere bystanders. 
42.	The evidence strongly points to their involvement. I accept the evidence of Mr. Pagen that Israel Bill was the principal instigator. He punched the complainant with a knuckle-glove in the presence of Smith Kop.  Smith Kop was the first person to confront Mr. Pagen.  He did not stop Israel Bill or disassociated himself in any way, manner, or form from the attack by Israel Bill. 
43.	I am satisfied that Smith Kop aided and abetted Israel Bill in assaulting the victim. I am satisfied beyond reasonable doubt that both accused were principal offenders by virtue of s. 7 of the Criminal Code. 
44.	On the charge of unlawful deprivation of liberty, there is not an iota of evidence Mr Pagen was unlawfully detained. The evidence points to the contrary.
45.	Verdict against each accused person
(1)	Guilty on the unlawful assault charges.
(2)	Not Guilty on the charge of Deprivation of Liberty.
46.	The offenders are to be remanded in custody for sentence.
_______________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused