The State v So'on Taroh (2004) N2675

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2675
• Date: 13 September 2004
• Court: National Court
• Year: 2004

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 (2003) N2416, The State v Peter Malihombu (2003) N2365, The State v Murray William (No 1) (2004) N2556, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, Rosa Angitai v The State [1983] PNGLR 185, The State v Sinzai Karawa (2004) N2631, The State v Inapero Susure (1999) N1880, The State v Isaac Wapuri [1994] PNGLR 271, The State v Kenny Reuben Irowen [2002] PNGLR 190, The State v Apa Kuman (2000) N2047, The State v Henry Idab (2001) N2172 referred to

Decision on Verdict: 13 September 2004

Decision on Sentence: 22 September 2004

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Decision on Verdict

Kandakasi J: You stand charged with one charge of causing grievous bodily harm to Peter Su'u on 26 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 25 August 2003 (exhibit "A") and another dated 13 October 2003 (exhibit "B").

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

1. you and the victim fought on 26 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 (2003) N2416 and The State v Peter Malihombu (2003) 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...