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State v Wairo [2004] PNGLR 3 (18 June 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

LINA MUTUARIN WAIRO

WEWAK: KANDAKASI J

16 and 18 June 2004

CRIMINAL LAW – PRACTICE & PROCEDURE – Prosecution always under duty to establish a charge beyond any reasonable doubt – Where defence of self defence or another is raised, State obliged to negative it – State failing to call relevant witnesses and establish a prima facie case against accused – Effect of – State failing to establish case.

CRIMINAL LAW – Verdict – Grievous bodily harm – Sister-in-laws fighting – Defence of self defence and provocation raised – Serious doubts as to real cause of fight – Whether accused could have carried three weapons including a sling shot all at the same time and attack victim – Whether victim could have returned from fleeing to accused then armed – Serious doubts in State's case – Court not satisfied that a prima facie case made out against accused – Verdict of not guilty returned.

Facts

Lina Mutuarin Wairo, pleaded not guilty to a charge of causing grievous bodily harm to her sister-in-law, Alberta Wairo on 19 August 2000 at Woginara No. 1, in Wewak. The accused claimed that she was provoked and therefore acted under self-defence.

Held

1. The law is clear on who has the burden to establish a charge against an accused person. The prosecution always has the burden to prove beyond any reasonable doubt, every element of an offence against an accused person. This duty includes an obligation to negative any defence, such as self-defence or provocation raised by the defence. Once the prosecution has discharge that obligation, only then does the accused has to answer: See R v Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (2002) unreported N2266.

2. There were a number of inconsistencies in the prosecution's evidence enough to cast a serious doubt on the case against the accused. The prosecution did not establish its case beyond any reasonable doubt. This test is considered and applied in the following cases: The State v Kevin Anis & Martin Ningigan, The State v Onjawe Tunnamai and Jimmy Onon v The State. This test recently applied in The State v Eki Kondi & Ors (No 1) by his Honour. Where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.

3. The other test which is closely aligned to the consistency test is on testing the evidence given in Court against logic and commonsense. Relevant principles restated in The State v Cosmos Kutau Kitawal & Anor (No 1). Test also applied by the National Court in The State v Gari Bonu Garitau and Rossana Bonu and affirmed by the Supreme Court when the matter went on appeal.

4. A further test is the demeanor of a witness in the witness box. The Courts have decided many cases in the past on an application of this principle or test. Examples of cases that readily come to mind are cases like that of The State v. Tauvaru Avaka & Anor14 and Gibson Gunure Ohizave v. The State.15

5. Finally, in some cases, the testimony of only one witness, may not be enough and the State is under an obligation to call the relevant and necessary witnesses. For a failure to do so may leave a number of factual questions unanswered, thereby giving rise to a doubt on the credibility of the evidence called and before the Court. I discussed this in The State v. Ben Noel & 2 Ors.16 In that case, the State failed to call key and available witnesses and the police investigations failed to consider other possible intervening causes that might have caused the death of a person in that case. I considered what consequences should follow from that:-

6. These principles were accepted into our jurisdiction by the Supreme Court in Paulus Pawa v. The State [1981] PNGLR 498. In that case the Court was concerned, amongst others, with a case in which the trial judge said, where a party fails to call a witness it opens the door to an inference that the witness will not support that party

7. The Court is unable to find that the State has made out a prima facie case against the accused. It was unsafe for the State to rely on the record of interview, clearly showing no signature of the accused before it could be taken on its face value.

8. The State has failed to establish its case on the required standard of prove beyond any reasonable doubt.

9. The Court ordered a dismissal of the charge against the accused and ordered that she be acquitted forthwith.

Papua New Guinea cases cited

Garitau Bonu and Rosanna Bonu v The State (1997) SC528.
Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.
Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698.
Paulus Pawa v. The State [1981] PNGLR 498.
R v. Agana Guguna (1965) N364;
The State v. Ben Noel & 2 Ors (Unreported judgment delivered on 31/05/02) N2253.
The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266.
The State v. Eki Kondi & Ors (No.1). (Unreported judgment delivered on 24/03/04) N2542.
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
The State v Kevin Anis & Martin Ningigan (Unreported judgment 07/04/03) N2360.
The State v. Murry William & 2 Ors (No. 1) (Unreported judgment delivered on 28/04/04) N2556.
The State v. Onjawe Tunamai (Unreported judgment delivered on 15/02/00) N1989
The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.
The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.

Counsel

J. Wala, for the State.
L. Siminji, for the accused.

18 June 2004

Kandakasi j. Lina Mutuarin Wairo, you pleaded not guilty to a charge of causing grievous bodily harm to your sister-in-law, Alberta Wairo on 19 August 2000 at Woginara No. 1, here in Wewak. You took that position claiming that you acted under self-defence and or provocation.

The State called only the victim to testify against you. That was in addition to tendering into evidence with your consent a medical report from the Wewak General Hospital dated 1 September 2000 and your record of interview which does not bear your signature. The fact that you did not sign the record of interview was left to be taken up in submissions. You also took the stand under oath and gave a sworn testimony.

Undisputed Facts

From this evidence, a number of facts emerge undisputed. Firstly, on the day of the incident, you sang a hymn from a church hymnal. It sounded not right according to the victim and a Veronica, who was with the victim at the time. They therefore, tried to correct you but it is not clear from the victim or from any of the evidence called by the State as to how they tried to correct you in terms of what did they exactly say or do to correct you.

Secondly, a fight eventually ensued. In that fight, the victim sustained serious injuries with the main one being a fracture injury to her right hand. That part of her hand is now useless. The victim also sustained laceration injuries to her jaw and facial area and her right index finger.

Disputed Facts: The Evidence

What is in dispute from a factual viewpoint is what was it that caused you to attack the victim, resulting in the above-mentioned injuries to her. This factual issue gives rise to the legal issue for trial and that is whether you acted in self-defence or under provocation. These questions can be answered by reference to the relevant facts and the relevant law. Accordingly, I now turn to a consideration of the facts. That will be followed by a consideration of the relevant law. I will then apply the relevant law to the relevant facts and arrive at a decision on the legal question before this Court.

(a) Victim's Evidence

The victim says, she was in her house, which is about 20 to 30 meters away from yours, on the day of the incident with a friend of hers, Veronica who had gone to visit her. They shared the Good news of God from the Bible. Thereafter, Veronica asked the victim to trim her hair, so they went to the verandah of the house and there, she trimmed her friend's hair. Then, as they were there, they heard you sing a church song incorrectly. She says she corrected you.

You were not happy with the correction, so you said "Kan yupela" [you vagina], went into your house and came out with a slingshot, a grass knife with a round tip and a bag full of stones. You then used the slingshot and threw stones at them. This caused them to seek refuge from their uncle's house. As they left, you called out to her and Veronica two times to return and close the door to their house. You said at the same time that, if they returned, one of them would die. Notwithstanding that, the victim told Veronica to follow her and she was on her way to closing the door.

As the victim proceeded to her house to close the door, you attacked her with the grass knife holding it with both of your hands. You landed it on her right hand with force. She fell to the ground unconscious and before that, called for help from Veronica's brother. Thereafter some unspecified person (s) took her to the hospital. When asked under examination in chief whether she received other injuries, she said she received injuries to her jaw area and her back as well as an injury to one of her fingers. She also said you called on your small children, then under 10 years old to attack her and they did, but does not say what injuries they caused her.

The victim does not say when exactly you bit her on her fingers but it seems you did that when she was already on the ground. As you were biting her fingers, Veronica's uncle slapped you on your jaw area and that stopped you from continuing to bite her.
The victim says, you are her sister-in-law as you are married to her brother. Her brother married you when she was in school and you have five children out of that marriage. During this period, she says she has had no grudges with you. On your part, she said however that, you have the attitude of getting angry with other people. This includes you arguing with her brother and stabbing him.

She denied a number of suggestions put to her under cross-examination. First was a suggestion that she said words to the effect, "you bad eye, one eye gone" three times when she tried to correct you. Secondly was a suggestion that as you came out of your house you said, "all church songs are all the same as one church sings the hymns of the other so it does not really matter." Thirdly was a suggestion that, she started the fight and that she was the one who took a grass knife and cut you. Fourthly, was a suggestion that she punched you down to the ground and while you were on the ground, the fight continued. In the process, she put her fingers into your mouth and you bit one of them. Fifthly, was a suggestion that you did not call her back to close her house door. Sixthly, was a suggestion that she had grudges against you. Finally, was a suggestion that, she destroyed your properties and the matter reached the attention of the village court, which issued a restraining order against her.

(ii) Your Evidence

Your evidence is that you were in your house with your children after your husband had left for his bush. You cooked some food and had them, followed by prayer for God to look after your husband, as the place where he went is a place where people got killed. You and your children singing a church song followed that. As you sang the song, your sister-in-law called out saying to you, "you one eye, eye gone". You told the children to sing even louder in a bid to drown her voice. Despite that, she repeated what she said to you three times. So you came out of your house and said to her "sister, all church songs are all the same as one church sings the hymns of the other so it does not really matter."
Thereafter, the victim came toward you with a grass knife and cut you on your leg describing you as a mad woman who had killed a person. She then bit you on your back. That was followed by a placing of her fingers into your mouth, in a bid to break your mouth but you bit one of her fingers and then pulled the grass knife off from her and struck her with it. You did that because of her attack on you including her description of the kind of person you were. You also said the only weapon used in this fight was the grass knife the victim came with.

You further said you did not go to the hospital because the victim's brother chased you and you took cover in another persons house until your husband returned and came for you. Even after that, you did not go to the hospital because your leg was swollen and that you could not easily go to the hospital. You only managed to get some medication from the village aid post. You added too that you were not educated like the victim to easily, get around to getting treatment.

Sometime well after the incident, after your arrest and whilst you were out on bail, the victim tried to provoke you to get into more trouble. This landed you and her in the village court, which gave a preventive order against the victim and you produced a village court document confirming that. This document speaks amongst others, of the victim destroying your garden crops. You go on to say that, this trouble saw you and the victim in the police station and the police directed you to resolve it at the village level.
Under cross-examination, when asked in relation to any grudges pre-existing the fight, the subject of this proceedings, you said you have nothing against the victim but she does. You explained that in terms of a concerted effort on her part in trying to have you removed as her brother's wife so he could marry a new wife. When challenged to admit to this being a false claim when the truth was that the victim and Veronica were only trying to correct you, you said, you were telling the truth and said further that if indeed they were trying to correct you, they should have done so in a proper manner but they did not.
Under further cross-examination, you denied using a slingshot and coming out of your house with a slingshot, a bag full of stones and a grass knife and using them against the victim. Counsel for the State tried to demonstrate that you were lying under oath because the version of the evidence you gave in your oral testimony was in conflict with your record of interview with the police and further that you were making new stories not raised in the record of interview or under your cross-examination of the victim. You maintained that your testimony is true. You also maintained that, the police gave you no chance to tell them all that you wanted to say about this trouble. Therefore, you say you gave the kind of answers they wanted to hear. I note in this context that, the record of interview does not have your signature.

Assessment of the Evidence

(a) Generally

Clearly, there are two different versions in a number of areas giving rise to a number factual questions. Of these, there are five most obvious and pertinent ones. The first of these questions is what was the cause of the fight, whether it was a mere correction of you singing a song or something more? Secondly, how many and what were the kind of weapons used and where did they come from? Thirdly, which of the two of you struck the other first? Fourthly, how and in what way did you bite the victim's finger? Finally, whether, you called the victim to come back and she did in fact come back to close the door despite you being armed and attacking her?

(b) Submissions of the Parties

Given this, both counsel submit and I accept without any hesitation that, your guilt or innocence is dependent on which of the two versions of the evidence the Court finds credible and accepts. The State submits that the Court should accept the version given by the victim because it is straightforward and is credible. It further submits that there is nothing to show that she is not a truthful witness. In so arguing, the State argues for a rejection of your evidence because you raised factual matters in your evidence without first raising them in your record of interview with the police, and in some respects put them to the prosecution witness by way of cross-examination.

Your submission is for the Court to find that the victim's evidence is incredible, particularly in relation to the matters noted above as the pertinent areas in which there are variances in the evidence. Your submission goes on further to reiterate that the obligation is always on the prosecution to prove the charge against you on the required standard of proof beyond any reasonable doubt. That, you submit, the State has failed to do by failing to call witnesses that it should have called to verify and corroborate the version advanced by the State. You also submit that, your version is credible. As such, you argue for an acceptance of your version of the evidence.

(c) The Relevant Law

The law is clear on who has the burden to establish a charge against an accused person. The prosecution always has the burden to prove beyond any reasonable doubt, every element of an offence against an accused person. This duty includes an obligation to negative any defence, such as self-defence or provocation raised by the defence. Once the prosecution has discharged that obligation, only then does the accused has to answer: See R v. Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266.

It follows therefore that if the defence has gone into evidence, the Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I made that clear in The State v. Peter Malihombu (29/04/03) unreported N2365 and followed it in a number of recent or subsequent cases, for example as in, The State v. Murry William & 2 Ors (No.1) (28/04/04) unreported N2556.
As already noted in your case, a decision on your guilt or innocence is dependent on which version I find is credible. In accordance with the law just outlined, I need to start that consideration with the State's evidence first. Then, if the Court finds that the State's evidence is credible, it will then have to find whether the evidence is sufficient and establishes a prima facie case against you. If in this way the Court finds that the State has done that, it will then be necessary to consider your evidence to determine if you have rebutted the case against you.

The question of credibility can be determined by applying a number of well-established tests or principles against the evidence before the Court. In so far as is relevant, one of these tests is consistencies in a party's own and the rest of the evidence called by that party. In The State v Peter Malihombu (supra), I found amongst others that, there were a number of inconsistencies in the prosecution's evidence. I found those inconsistencies serious enough to cast a serious doubt on the case against the accused. Accordingly, I found that the prosecution did not establish its case beyond any reasonable doubt. Many other cases have considered and applied this test. Examples of these are the judgments in The State v Kevin Anis & Martin Ningigan (07/04/03) unreported N2360, The State v. Onjawe Tunamai (15/02/00) unreported N1989 and Jimmy Ono v. The State (04/10/02) unreported SC698. I recently applied this test in The State v. Eki Kondi & Ors (No.1) (24/03/04) unreported N2543.

The clear import of these and other authorities is that where serious inconsistencies exist, there is the possibility of false testimony, therefore unsafe to act on.

Another test is closely aligned to the consistency test and this test is focused on testing the evidence given in Court against logic and commonsense. I restated the relevant principles and therefore the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) unreported N2266 in these terms:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."

This test was clearly applied by the National Court in The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48. When that matter went on appeal to the Supreme Court, it affirmed it in Garitau Bonu & Rosanna Bonu v. The State (1997) SC528. This followed earlier statements and an application of this principle as represented by the case of Paulus Pawa v. The State [1981] PNGLR 498.

A further test is the demeanor of a witness in the witness box. The Courts have decided many cases in the past on an application of this principle or test. Examples of cases that readily come to mind are cases like that of The State v. Tauvaru Avaka & Anor (2/11/00) unreported N2024 and Gibson Gunure Ohizave v. The State (26/11/98) unreported SC595.

Finally, in some cases, the testimony of only one witness may not be enough and the State is under an obligation to call the relevant and necessary witnesses. For a failure to do so may leave a number of factual questions unanswered, thereby giving rise to a doubt on the credibility of the evidence called and before the Court. I discussed this in The State v. Ben Noel & 2 Ors (31/05/02) unreported N2253. In that case, the State failed to call key and available witnesses and the police investigations failed to consider other possible intervening causes that might have caused the death of a person in that case. I considered what consequences should follow from that in these terms:

"What consequence should follow from this failure as a matter of law is not clear. But the position is clear and settled where a defendant in a criminal case fails to call a witness (s).

The relevant principles are set out in Booth [1983] VicRp 4; (1983) 1 VR 39 at 52. These principles have their roots back to the case of Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298, hence known as 'the rule in Jones v. Dunkel'. The principles have been expressed in these terms by way of an address to a jury by a judge:

'In making evaluation of the accused's evidence, you may consider whether there were witnesses who might have been called to support his version, although you cannot speculate upon what they might have said. To use the failure to call witnesses against the accused in this trial, you would have to be satisfied, first, that there was a witness who heard and saw some of the events of which the accused has spoken, secondly, that that witness is available, in the sense that his absence has not been satisfactorily explained. If you were satisfied about those two matters, you may infer that the witness's evidence would not have helped the accused. This in turn may lead you to attach less weight than you otherwise would have to the evidence of the accused. Even if you were satisfied about the availability of the witness and the lack of explanation for his absence, you are not bound to draw any inference adverse to the accused, although it is open to you to do so. It is really a matter of forming commonsense judgment about the matter.'

These principles were accepted into our jurisdiction by the Supreme Court in Paulus Pawa v. The State [1981] PNGLR 498. In that case the Court was concerned, amongst others, with a case in which the trial judge said, where a party fails to call a witness it opens the door to an inference that the witness will not support that party. The Court, per Kapi J (as he then was) after noting the finding of the trial judge said these:

'These findings were made on the material before the court without any reference to the question of any inference to be drawn by failure of the appellant to call a witness to support his story. He then referred to R. v. Gallagher [(1974) 59 Cr.App.R. 239] as authority for commenting on the accused's failure to call the witness. After discussing the availability of this witness, his Honour said: 'I was surprised that he was not called. The failure to call him is open to the inference, which I draw, that he would not have supported the accused's story.''

In my view, these principles equally apply with appropriate modifications to the prosecution because of the requirement that it must prove its case beyond any reasonable doubt. A failure to call a material witness may support an inference that such a witness was not going to support the case for the prosecution if the two matters spoken of in Booth (supra) are met. This may in turn create a doubt on the credibility of the prosecution's case and therefore fail to meet the required standard of, proof beyond reasonable doubt."

Your Case

Applying the above tests, I first ask the question, has the State's only witness, the victim, given a testimony that is consistent in itself and with a sense of logic and commonsense? During submissions of the parties, I pointed out a number of parts of the victim's testimony that seemed to sound or appear not right from a logical and commonsense viewpoint. I set them out under the Assessment of evidence and more specifically under the subheading immediately following that. In summary, these are (1) the cause of the fight; (2) the number and kind of weapons used and where did they come from; (3) who struck who first; (4) the biting of the victim's finger; and (5) you calling the victim to come back despite you being armed and attacking her?

I consider first the question of what was the cause of the fight? There is no argument and it is clear that this started with you singing a church song and the victim tried to correct you. What is not clear is, what was it that the victim did or said to correct you? She does not say what she said or did to correct you. Similarly, she does not say why it was necessary for her to correct you, particularly when you were not in the same house and trying to sing the song together or were part of a group together trying to sing the song correctly.

In my view, this is important in view of the defence raised. The Court needs to know what the victim said or did that provoked or caused you to go and attack her. Counsel for the State submits that the Court must infer that whatever she said or did, did cause you to go and attack her. With respect, I do not consider it proper for the Court to do that when the primary fact of what the victim said and or did is missing. The sworn evidence on this is your testimony that, she repeatedly called you "you one eye, eye gone" and that made you to go out of the house and respond as you did. There is no other evidence rebutting this apart from the victim's mere denials.

Human beings do not go and just attack another person, particularly in close family settings such yours and the victim was. There is always a reason and cause for a physical attack as in this case. I find that the victim was not truthful on this. She was prepared to hide the real cause of the problem, whatever it was. You suggested to her that the cause of the fight was her repeatedly calling you "you one eye, eye gone". This should have caused her to say what she said and or did but she did not.

There is an age-old saying that, one should not call a blind man a blind man and similarly a cripple man a cripple man. For this has the potential of causing such a person into unprecedented action which, could do a lot of damage. According to you, that is what the victim said to you and you reacted by getting out of your house and inquiring with the victim as to why she was interfering with your singing. I note in fact that at least one of your eyes is not normal and so I find that if what you say she said was said, then that explains the way in which you responded.

The next aspect is how you responded. In this regard the question raised is, did you come out of the house with a bag full of stones a slingshot and grass knife to fight the victim as stated by her. Is this logical and consistent with how a person in your position could have reacted? There are two problems with this part of the State's evidence. Firstly, how did you carry all of these things, and secondly, did they in fact all come from you and your house, in view of the defence raised?

Dealing with the first issue first, I cannot possibly work out how you could have carried all these three things. The victim does not describe how big the bag full of stones was and she does not describe the manner in which you carried them. Counsel for the State urged the Court to assume that the bag full of stones was small and that you held it with the slingshot on one hand and the grass knife was held by the other. This Court cannot assume, it must have the necessary facts unless it is a fact, which qualifies for judicial notice, which is not the case here. If I can assume as suggested, it gives rise to a further question, why was it necessary for you to carry all of these weapons? The victim's evidence apart from failing to give any description of the manner in which she says you carried all of these weapons, she also says you used the slingshot first without saying where you put the bag full of stones and the grass knife.

Normally, in an immediate reaction type action as in this case, people usually get hold of whatever weapon or object they can put their hands on and hold firmly to attack another. It is usually hard to carry more than one thing at a time in one's hand unless it can easily be done. The onus was on the State to demonstrate by appropriate evidence that these weapons were capable of being carried all at the same time by you at the time of the incident. The State simply failed to discharge that obligation.

Turning then to the next aspect, I note both of you are women and I note that, of the two of you, the victim could have been stronger than you were as she was young and strong. I note she still appears to be so, save for the disability to her right hand arising out of the fight between the two of you. You are also slightly shorter than the victim. One of your eye is not 100 % good.

As I said to counsel during submissions, men and boys usually carry and use slingshots because of the type of weapon it is. I have not seen nor have I had a case in which a female had used a slingshot to injure or attack another or use it in any other way. The State's response to that is that these are generalizations, without disputing the suggestion. However, more importantly is the fact that there is no evidence from the State, that despite you being an older woman, you used to and did on this occasion use a slingshot for whatever purposes. Further, the slingshot is not in evidence and there is no independent evidence that it came from your house.

Likewise, there is no evidence that the grass knife you used to cut the victim came from you or your house apart from the victim's own evidence. In your evidence, you say the grass knife came from her. So, the question is whose knife was it and where did it come from? It is your word against hers. It would have greatly assisted the Court if the person who was with the victim at the time of the fight was called to give evidence. The State says she is out of the Province. It does not however go further to say she cannot be located and brought into Court as a witness. Unlike you, the State does have the means to carry out the necessary inquiry and secure her appearance as a witness. That was not done.

In the absence of Veronica at least her uncle who came to the scene to separate you from the victim, or your husband should have been called to say amongst others, where did the bush knife and also the slingshot come from? There is no evidence before this Court that, these possible witnesses are not available and as such they cannot be called with the exercise of reasonable care and attention.

This failure on the part of the State to call the witnesses does not mean that they have failed to establish the charge against you in accordance with the principles discussed in The State v. Ben Noel & 2 Ors (31/05/02) unreported N2266. However, what it does mean is that, it leaves room for doubt in the areas in question. As such, it does not assist the State in its responsibility to establish the charge against you beyond any reasonable doubt.

The failure to call relevant witnesses leaves this Court with much difficulty to work out whether you struck the victim first or the victim struck you first. Whilst, I appreciate that in this kind of cases, corroboration is not strictly required, where there is a likelihood of there being an equal contest, the State should do more, in terms of calling all available witnesses, given the burden it has in a criminal trial to prove its case beyond any reasonable doubt. For there cannot be a draw in a criminal trial. In this case, once again, it is your evidence against that of the victim, the failure to call other relevant and available witnesses leaves room for doubt in the case against you on this score as well.

The remaining aspects of the victim's evidence concerns how you were able to bite her finger and whether you called her back twice to come and shut the door to her house and she did that despite you being armed and threatening to kill either her or Veronica. I will deal firstly with the biting of the finger.

The victim's evidence on this seem to suggest that, after you cut her with the grass knife, she fell down on the ground unconscious. She does not say and there is again no other evidence as to what happened to the grass knife and you chose to use your teeth instead of the grass knife. The lack of calling the available witnesses also features prominently here as well. In the absence of any other evidence to the contrary, the explanation you provide in your evidence appear reasonable, which is that you struggled with her holding on to the knife and in the process, she put her fingers into your mouth and that is how you bit her. In the light of this evidence, no inference in favour of the State on this aspect can be sustained.

The final consideration I turn to is whether it is logical and in keeping with commonsense that the victim came back to close the door as she claims. The victim's testimony also is that as you called out to her and Veronica to come back twice to close the door to the victim's house, you said you would kill one of them. Further, the victim testified that you were armed with the grass knife and that she and Veronica were trying to seek cover from Veronica's uncle's house. But when you called out, she returned telling Veronica to follow as she did. I find this hard to believe, especially when according to the victim's own evidence, you were armed and you were on the attack and that you did threaten to kill one of them.

A thinking rational human being when faced with such a situation has one of two options to take. One to run away as fast as he or she could before he or she is attacked. The other is to face the threat directed at him or her with a view to overpowering and disarming or destroying the other person. If the victim gave evidence in terms of taking either of these options, she would have been telling the truth. Instead, she gives an account totally outside these options. I therefore find that she was once again not telling the truth.

Decision

In all of these circumstances, I find that the victim was an untruthful witness. I find that she was not clear and specific, contrary to the submissions of counsel for the State. The failure of the State to call available and relevant witnesses has resulted in much doubt being left more so in view of the defence you raised. Given this, this Court is unable to find that the State has made out a prima facie case against you for you to answer. Therefore, it is not necessary for me to give any consideration to your testimony any more than I have in the above.

There is however, one aspect that I wish to make mention of before closing since it was raised in the arguments before me. This concern your record of interview with the police. In the record of interview, you purportedly admitted to committing the offence in the way the State presented its case. The record of interview was admitted into evidence with your consent, despite the fact that you as the person who was interviewed did not sign it. The lack of your signature could mean either of two things. You did not understand and or did not agree with its contents or that the record of interview did not take place at all. In your oral evidence in Court, you said you were not permitted to say things you want to say and you felt compelled to say yes to all the questions you were asked. The record of interview contains some yes answers and some in different terms.

The State cross-examined you on the record of interview and suggested that your oral testimony is false. It suggested that the correct version is as per your record of interview. Your response to that is that, you told the Court what happened and that is the truth.

I consider it most unfair to suggest that you were lying in Court based on your record of interview. I say it was most unfair because, first of all, you did not sign the record of interview. It follows therefore, that you were not prepared to accept the record of interview as a true account or what were asked and answered. Secondly, you appear to me to be an ordinary villager. Therefore, you are not able to tell what is in it. Given these, I am of the view that your counsel should not have agreed to its admission at the first place. At the same time, I am of the view that it was unsafe for the State to rely on the record of interview, clearly showing no signature of the accused before it could be taken on its face value.

In these circumstances, I consider it unsafe to act on the record of interview not signed by you, particularly when there is no evidence before this Court that it is a true and correct record of the record of interview. The burden was on the State to show that the questions and answers in the record of interview are indeed what were put to you and you answered. In my view, that cannot be achieved solely by cross-examining you because to do so would proceed on the assumption that the record of interview is correct when it is not on the face of it because of your not signing it.

In the end, I find that the State has failed to establish its case on the required standard of prove beyond any reasonable doubt. Accordingly, I order a dismissal of the charge against you and order that you be acquitted forthwith. I also order a refund of your bail on the provision of the relevant receipt.

Lawyers for the State: Public Prosecutor.
Lawyers for the accused: Public Solicitor.