The State v Isaiah Iona

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 25 July 2018
• Citation: (2018) N7391
• Court: National Court
• Year: 2018
• Judgement Number: N7391

Full : CR No. 463 of 2018; The State v Isaiah Iona (2018) N7391

National Court: Anis J

Judgment Delivered: 25 July 2018

N7391

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 463 of 2018

THE STATE

V

ISAIAH IONA

Duke of York: Anis J

2018: 25 May, 7 June & 25 July

CRIMINAL LAW – trial on verdict – section 319 of the Criminal Code Act Chapter No. 262 – grievous bodily harm – whether the accused was at the crime scene – whether the accused was identified – whom to believe

Cases Cited:

John Beng v. The State [1977] PNGLR 115

State v. Elsie Wabi (2009) N3662

State v. Joe Ngotgnot and Eremas Matiul (2016) N6306

State v. Ray Johnson (2016) N6379

Counsel:

Ms S. Luben, for the State

Ms J. Ainui, for the Accused

VERDICT

25th July, 2018

1. ANIS J: This is a decision on verdict. The accused was charged with the offence, grievous bodily harm, under section 319 of the Criminal Code Act Chapter No. 262 (CC Act) on 3rd January 2018.

2. The trial on verdict was heard at Kibil in Duke of York, East New Britain from the 24th to the 25th of May 2018. Presentation of submissions hearing was held in Kokopo on 7th June 2018. I reserved my decision thereafter to a date to be advised.

3. This is my ruling.

INDICTMENT

4. The indictment reads:

ISAIAH IONA of MIOKO PALPAL, DUKE OF YORK, EAST NEW BRITAIN PROVINCE stands charged that he on the 31st day of December 2017 at Mioko Palpal in Papua New Guinea unlawfully did grievous bodily harm to Paul Ezekia.

5. The brief facts presented by the prosecution in support of the indictment reads:

On the 31st of December 2017 between 11pm and 12 midnight the accused was at Mioko Palpal, Duke of York Island. It is alleged that the accused, his brother Lesley Iona and their father Alipet Iona brought a group of other young men into the premises of the victim’s family. They threw stones at the victim’s home and started a fight with the victim’s family. The victim Paul Esekia came to stop the fight. As Paul Esekia was trying to separate the accused from his (Paul’s) brothers, the accused picked up a piece of brick and hit the victim on his forehead. The victim fell to the ground. While the victim was unconscious on the ground, the accused pulled out a knife. He was about to stab the victim when he was punched by Jack Issac.

The victim sustained a fractured skull as a result of the assault. The State further alleges that by his actions the accused unlawfully caused grievous bodily harm to the victim. The charge is laid pursuant to s.319 of the Criminal Code.

EVIDENCE

6. The prosecution called two (2) witnesses. They were (i) the victim, Paul Esekia and (ii) Isaac Jack. The defence called one (1) witness who was the accused. In regard to documentary evidence, the prosecution tendered without contest, a total of six (6) documents. The defence on the other hand tendered one (1) document. The prosecution’s documentary evidence are marked as “Exhibit P” followed by a number. The defence’s document is single and it is marked as “Exhibit D 1”. I set them out below herein:

Exhibit No.	Description	Date Filed
“P1”	Record of interview, English and Pidgin versions	28/03/18
“P2”	Patient referral letter	01/01/18
“P3”	Two x-ray photographs	undated
“P4”	Photograph of a brick	undated
“P5”	Corroborator’s statement, Constable Joanne Yauwe	28/03/18
“P6”	Statement of Constable Jemma Maibogu	04/04/18
“D1”	Patient referral letter	03/11/17

ISSUES

7. The main issue is identification. To determine that, I must decide on whom I should believe on what happened at that New Year’s night on 31st December 2017. Did the prosecution witnesses identify the accused as the person responsible for the injury the victim sustained on that night? If the answer to that is a ‘yes’, the next question is, whether the injury sustained amounts to grievous bodily harm within the meaning of section 319 of the CC Act.

JOHN BENG WARNING

8. Identification as the primary issue, may I remind myself of the dangers, that is, when considering and deciding whether to convict a person based solely on identification evidence when identification is the only issue for trial that will decide whether it was the accused that committed the offence. In the present case, the incident occurred in a village setting at night time on New Year’s Eve in 2017. Evidence adduced indicate that people were celebrating or feasting at the time the incident occurred. The Supreme Court in the case of John Beng v. The State [1977] PNGLR 115, cautioned judges to be mindful of the dangers when faced with this type of situation. The Supreme Court held and I read in part:

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

9. I adopt the above herein as my own as I move on now to address the evidence.

WITNESSES TESTIMONIES

10. Let me summarise the witnesses’ testimonies.

11. The prosecution’s first witness was the victim Paul Esekia. He said as follows. He said that on 31st December 2017, between 11pm and 12am, he was at his house at Rapindik in Mioko village. He said that from there, he heard people shouting outside. He said he enquired and he was told that there was a fight at Rapaen village, which he said was his mother’s village. He said he got up from there and ran towards his mother’s village. From there, he said he was told that the accused had started a fight with his brothers. He said there was a moonlight that night and he could see what was happening. He said the accused was fighting with his brothers. He said he walked over and separated the fight, that is, he said he pulled apart the accused and his two (2) brothers. He said that just then, he saw the accused bent down, picked up a piece of brick and hit him on his forehead with it. He said he was standing 3 meters away from the accused when the accused threw the brick at him hitting him on his forehead. He said he felt blood pouring down from his face. He said he fainted and fell to the ground. He identified the accused by pointing to him in Court.

12. The prosecution’s second witness Isaac Jack said as follows. He said that he was present at the fight that night when the accused assaulted Paul. He said before that, the accused, his father Iona Alipet and his other brother Leslie Alipet started a commotion at Rapaen village. He said the group destroyed some of his families’ properties before the fight. He said from there, the accused went on and started a second fight with his cousin brothers on a small field. He said the whole fighting went on for about 1 hour and 30 minutes. He said that from the second fight, the accused fought with Ezekial Esekia, Johnson Penias and Esekial Penias. He said the victim Paul Esekia approached them to stop the fight. He said after Paul had pulled them apart, the accused stepped back, bent down, picked up a brick and hit Paul’s face with it. He said he saw Paul Esekia fall to the ground. He said he was standing about 3 to 4 meters away when these happened. He said he intervened and punched the accused in the face to protect Paul Esekia. He said he did that because he saw that the accused had pulled out a knife from his pocket. He said when the accused realised that Paul was unconscious and was on the ground, he fled from the scene. He said there was moonlight that night and the place was clear. He said that was how he saw the accused. He identified the accused in Court by pointing to his direction.

13. The defence called the accused to testify. This is what he said. He said at the material time, he was ill. He said he was and is still suffering from an injury to his groin. He said there were three (3) incidents that occurred at the material time. He said he did not know of the first two incidents. By that, he was referring to the alleged destruction of property at the victim’s mother’s village at Rapaen, and as to the second incident, he was referring to the fight where the victim had been assaulted. In relation the third incident, he said that that was when he was assaulted. He said at that time, he was escorting his parents to drop off Leslie’s visitors. He said Ismail and Paul Bobby approached and attacked him at the Court house area of Mioko. The accused’s accounts of the dates and timing were not clear as I will address below in my judgment.

ASSESSMENT

14. I find many inconsistencies in the evidence of the accused. I say...