The State v So'on Taroh (2004) N2675

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 September 2004
• Citation: (2004) N2675
• Court: National Court
• Year: 2004
• Judgement Number: N2675

Full Title: The State v So'on Taroh (2004) N2675

National Court: Kandakasi J

Judgment Delivered: 13 September 2004; 22 September 2004

1 CRIMINAL LAW—Verdict—Grievous bodily harm—Self defence—Issue for trial—Whether Accused acted in self defence—Elements of defence—Evidence showing accused had time to avoid danger in more than one peaceful means—Defence not established—Guilty verdict returned—s269 and s270 of Criminal Code.

2 CRIMINAL LAW—Sentence—Intentional grievous bodily harm—No sentencing guidelines—Some guidelines suggested and applied—Sentence has to be above those imposed in non–intentional grievous bodily harm cases—Three cuts to the hand with no residual disability—Use of bush knife—Not worse case of—8 years sentence imposed—Criminal Code s19, s315 and s319.

3 The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416, The State v Peter Malihombu (29/04/03) N2365, The State v Murray William and 2 Ors, (No 1) (28/04/04) N2556, The State v Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266, Rosa Angitai v The State [1983] PNGLR 185, The State v Sinzai Karawa (27/08/04) N2631, The State v Inapero Susure (17/06/99) N1880, The State v Isaac Wapuri [1994] PNGLR 271, The State v Rueben Irowen (24/05/02) N2239, The State v Apa Kuman (20/12/00) N2047, The State v Henry Idab (17/12/01) N2172 referred to

Decision on Verdict: 13 September 2004

Decision on Sentence: 22 September 2004

___________________________

N2675

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 545 of 2004

THE STATE

-V-

SO’ON TAROH

LORENGAU: KANDAKASI, J.

2004: 09th, 10th and 13th September

CRIMINAL LAW –Verdict – Grievous bodily harm – Self defence – Issue for trial – Whether Accused acted in self defence – Elements of defence - Evidence showing accused had time to avoid danger in more than one peaceful means - Defence not established – Guilty verdict returned – Sections 269 and 270 of Criminal Code.

CRIMINAL LAW – Sentence – Intentional grievous bodily harm – No sentencing guidelines – Some guidelines suggested and applied – Sentence has to be above those imposed in non-intentional grievous bodily harm cases – Three cuts to the hand with no residual disability – Use of bush knife – Not worse case of - 8 years sentence imposed – Criminal Code ss. 19, 315 and 319.

Cases cited:

The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416.

The State v Peter Malihombu (29/04/03) N2365.

The State v. Murray William and 2 Ors. (No 1) (28/04/04) N2556.

The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266.

Rosa Angitai v. The State [1983] PNGLR 185.

The State v. Sinzai Karawa (27/08/04) N2631

The State v. Inapero Susure (17/06/99) N1880.

The State v. Isaac Wapuri [1994] PNGLR 271.

The State v. Rueben Irowen (24/05/02) N2239.

The State v. Apa Kuman (20/12/00) N2047.

The State v Henry Idab (17/12/01) N2172.

Counsels:

A. Kupmain the State.

A. Raymond for the Prisoner.

DECISION ON VERDICT

13th September 2004

KANDAKASI J: You stand charged with one charge of causing grievous bodily harm to Peter Su’u on 26th August 2003, Timoenai village West Coast Manus. You denied the charge, saying in your defence that you attacked the victim in self-defence. This necessitated a trial in which you went into evidence with Saleu Kalai while the State called the victim and his wife. Additionally, the State admitted into evidence with your consent a medical report dated 25th August 2003 (exhibit “A”) and another dated 13th October 2003 (exhibit “B”).

Given your defence, there following facts are not in dispute:

1. you and the victim fought on 26th August 2003;

2. you used a bush knife in that fight and caused three cuts to both of the victim’s hand;

3. the fight took place after the victim had gone and talked to Mr. Kalai and was on his way back to his house;

4. you two fought in the open and not within a confinement; and

5. was in the village where there were many people.

What was factually in issue was, what did the victim do that caused you to act in self-defence? The victim with the support of his witness said he did not attack you. You attacked him from the back and cut him on both of his hands. On the other hand, you with the support of your witness said you cut the victim twice on his hands to avoid the victim cutting you. Which of these versions the Court should accept is dependant on which side the Court finds more credible.

Finding of credibility is in turn dependent on matters of logic and commonsense as well as the demeanor of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 and The State v Peter Malihombu (29/04/03) N2365. Accordingly, I carefully observed the demeanor of each of the witnesses called. I must say I could clearly tell that each of the witness were protective and supportive of the version of the party that called them. I sensed therefore that, their respective testimonies were not entirely the truth. There were some truths and some tailored evidence on both sides.

A clear example of this observation against the State is where the victim initially said he went to Mr. Kalai’s house armed only with a piece of wood, despite going to express his disapproval for Mr. Kalai trying to bring onto the victim’s land a timber company. Later under cross-examination, he admitted to carrying a grass knife also and the wood had the shape of a gun. His wife, Piwen Su’u tried to support this version and said her husband carried only a wood carved in the shape of a gun by her little children. In so doing, she contradicted her husband’s evidence. This contradiction could however, be explained by your evidence that, this witness was not there and did not witness the fight.

On your side, both you and Mr. Kalai, had reason to know the reason why the victim went to talk to Mr. Kalai in the morning of the day of the fight. It was over you and Mr. Kalai trying to bring onto the victim’s land a timber company. The victim spoke about that when he went to Mr. Kalai’s house. Both of you said you heard him, but were not able to tell the Court what exactly he said to Mr. Kalai and later you. You also said he came with a gun pointed at you to shot you. However, when he came closer to you, you said he put his gun down and used his grass knife to attempt to attack you several times. If he came with intend to shoot you or kill you, I cannot understand why or what made him to put the gun down and attack you with his grass knife. This does not sound well in logic or commonsense. Similarly, I cannot readily find that, Mr. Kalai remained in doors and did nothing, if indeed the victim was attacking you. Naturally, Mr. Kalai would have come to your help, after all, according to your own evidence, the victim put his gun down and was attacking you with his grass knife.

Further, and more importantly, you in your evidence said, the victim tried to cut you several times but you successfully avoided them by ducking and running away. You went on to say you ran under the steps to your house and he continued to pursue you there. Hence, you reached into your house and said seeing that, you had no hope because you had nothing in your hands, you got your bush knife and swung it at the victim twice cutting him on both of his hands. You did not explain whether, you cut the victim’s hands in the one swing of your bush knife or one after the other with each swing getting the hands separately. If it was one after the other, you did not explain how the victim was still able to try to cut you after you cut him on the first swing of your bush knife at him and whether, that was on his left or right hand. Similarly, you did not say whether you ran into your house, came out with your bush knife, and cut the victim. If you did not run into your house, you did not say where in the house was your bush knife and how you were able to reach for it and use it against the victim.

Given the undisputed facts and your own testimony, I need to determine whether you in fact acted in self-defence. Section 269 of the Criminal Code...