The State v Joe Ngotngot

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 30 May 2016
• Citation: (2016) N6306
• Court: National Court
• Year: 2016
• Judgement Number: N6306

Full : CR No 644 of 2014 and CR No 1540 of 2015; The State v Joe Ngotngot and Eremas Mutiul (2016) N6306

National Court: Anis AJ

Judgment Delivered: 30 May 2016

N6306

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 644 OF 2014 and CR NO. 1540 OF 2015

THE STATE

V

JOE NGOTNGOT

AND:

EREMAS MUTIUL

Kokopo: Anis AJ

2016: 11, 14 15, 16 and 17 March and 30 May

CRIMINAL LAW – section 315(a)(d) of the Criminal Code Act - grievous bodily harm with intent - elements of the offence discussed - element of intent absent - alternative charge - section 319 - grievous bodily harm - elements of charge and grievous bodily harm discussed - charge sustained - accused convicted of alternative charge of grievous bodily harm

CRIMINAL LAW - identification - principles discussed - assault occurred at broad daylight - complainant and other witness alleged to be intoxicated at the time of the assault - no credible evidence to support claim

CRIMINAL LAW - one co-accused exercised his right to remain silent - his record of interview was tendered without objection - it contained partial admission of assault - accused remained silent and did not explain his partial admission - partial admission used as good evidence against both accused

PRACTICE AND PROCEDURE - court considered evidence in totality - methods of considering totality of evidence discussed - second method applied - evidence of prosecution and defence considered together to determine the material facts and issue

Facts

The State charged two co-accused each with grievous bodily harm with intent, on one complainant Miriam Papakat. Both accused are policemen. The offence was allegedly committed on the complainant during police investigation into a disturbance that occurred at Kabakada village in Rabaul. Both accused pleaded not guilty.

Held:

1. The Court considered the evidence in totality following the second method that is considering together the evidence of the prosecution and the defence, to finding the truth or nearer to the truth of what really happened (case law followed: State v. Miriam Kakun (1997) N1673).

2. A record of interview that is tendered without objection or by following due process, is good evidence and is open to the Court to assess and give appropriate weight to, even if the accused person or its author exercises his or her right to remain silent at the trial (case law followed: State v. John Yeon Bekeram (2011) N4298).

3. The two accused claimed the complainant was 'drunk' and mistakenly identified them as responsible for assaulting her but the assault on the complainant occurred at broad daylight and the complainant and witnesses there had more than 1 to 2 hours to view, recognise or identify the two accused.

4. The charge of grievous bodily harm with intent under section 315(a)(d) of the Criminal Code Act Chapter No. 262 against the two accused was not sustained because the prosecution failed to establish the element of intent.

5. The alternative charge of grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 against the two accused was sustained.

Cases Cited:

Ilai Bate v. The State SC1216 (2012)

John Beng v. The State [1977] PNGLR 115

Keko Aparo and Ors v. The State (1983) SC249

State v. Miriam Kakun (1997) N1673

State v. John Yeon Bekeram (2011) N4298

Counsel:

Ms Aihi, for the State

Mr Kaluwin, for the two Accused

RULING ON VERDICT

30th May, 2016

1. ANIS AJ: The State (prosecution) presented a single indictment dated 10 March 2016, on 11 March 2016, against you two. The indictment reads in part:

JOE NGOTNGOT of TAVU NO. 3, RABAUL and EREMAS MATIUL of RABURUA, KOKOPO, EAST NEW BRITAIN PROVINCE both stand charged that they the said JOE NGOTNGOT and EREMAS MATIUL on the 14th day of December 2013, at Kabakada Village, Rabaul in Papua New Guinea with intent to do grievous bodily harm did grievous bodily harm to one MIRIAM PAPAKAT.

ALTERNATIVELY

JOE NGOTNGOT of TAVUI NO. 3, RABAUL and EREMAS MATIUL of RABURUA, KOKOPO, EAST NEW BRITAIN PROVINCE both stand charged that they the said JOE NGOTNGOT and EREMAS MATIUL on the 14th day of December 2013, at Kabakada Village, Rabaul in Papua New Guinea unlawfully did grievous bodily harm to one MIRIAM PAPAKAT.

CHARGE

2. You two are charged under section 315(a) (d) and alternatively under section 319, of the Criminal Code Act Chapter 262 (Criminal Code). The prosecution also invokes section 7 of the Criminal Code.

3. Let me set out these provisions herein:

315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who, with intent—

(a) to maim, disfigure, or disable any person; or

...,

does any of the following things is guilty of a crime:—

(d) unlawfully wounding or doing a grievous bodily harm to a person; or

...

Penalty: Subject to Section 19, imprisonment for life.

319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1) (d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

BRIEF FACTS

4. The prosecution, in presenting the indictment, relies on the following brief facts against you two. I will summarise that herein:

5. On 14 December 2013 at around 10am - 10:30am, you two with other policemen namely Michael Keleve, Bani Masat and Louis Ling went to Kabakada village. You all went there to attend to a complaint laid by another villager from the same village Ekonia Levi Pidikier (Ekonia) and his wife. The couple alleged that the complainant Miriam Papakat (Miriam) and some youths damaged their house the previous night. At Kabakada village, you Eremas Matiul held a softball bat and used it to hit the arms and legs of Miriam. You Eremas Matiul then dragged Miriam to the other policemen who also assaulted her and another suspect Jimmy Raflin (Jimmy). You Joe Ngotngot used a rubber fan belt to assault Miriam and you swore at her. You two continued to assault Miriam and Jimmy, that is, you Eremas Matiul used the softball bat and you Joe Ngotngot used the fan belt. You two and other policemen then took Miriam and Jimmy to the main road to wait for the police vehicle to arrive. There, you two continued to assault Miriam some more that is, you Eremas Matiul used the softball bat and you Joe Ngotngot used the fan belt. Miriam cried out in pain and begged you two to stop but you two did not listen to her. You two broke Miriam's right leg at that point in time. When the police vehicle arrived, you two plus the other policemen took Miriam and Jimmy to the police station. Despite Miriam's severe injuries, police detained her in the cell from 14 December 2013 to 16 December 2013. Miriam was later released on bail and she sought medical attention at the Nonga Base Hospital.

PLEA

6. You two deny the charges of grievous bodily harm with intent. You two do not deny being at the crime scene with other policemen. But you two deny assaulting Miriam, that is, as for you Joe Ngotngot, you deny that you used a fan belt to assault Miriam, and for you Eremas Matiul, you deny that you used a softball bat to assault Miriam.

7. Your trial on verdict commenced on 11, 14, 15, 16 and 17 March 2016. The Court reserved its decision on verdict on 17 March 2016.

8. This is my ruling.

MAIN ISSUE

9. The main issue as agreed by the parties is identification.

10. I note that the prosecution has the burden to prove beyond reasonable doubt the charges of grievous bodily harm with intend against you two. This also goes for the alternative charge of grievous bodily harm. If the prosecution fails to discharge this burden of proof on both charges, and the Court is also unable to enter a convict on lesser charges under assault, I will dismiss the charges and acquit you two.

EXHIBITS

11. The parties, by consent, tendered the...