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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 320 OF 2009
THE STATE
V
NORMAN KUKARI
CANNINGS J
Bialla: Cannings J
2009: 15, 18 May
Kimbe: 26 May 2009
VERDICT
CRIMINAL LAW – grievous bodily harm with intent, Criminal Code, Section 315(b) and (d) – trial – defence of self-defence – onus of proof on defence.
The accused was charged with unlawfully and intentionally doing grievous bodily harm to the complainant, his sister-in-law, in a domestic dispute. He raised a number of defences: that she tripped and caused the injuries herself; that he acted in self-defence; that he was provoked; that he did not intend to cause her grievous bodily harm.
Held:
(1) There are three elements of the offence under Section 315(b) and (d): that the accused "did grievous bodily harm" to the complainant; that he did it "unlawfully"; and that he "intended" to do grievous bodily harm.
(2) To determine whether the first element is satisfied, reference must be made to the definition of "grievous bodily harm" in Section 1 of the Criminal Code: it means "any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health". And it must also be proven that the accused "did" such harm to the complainant.
(3) The second element is proven if there is no lawful justification or excuse for the accused's action. Once a specific defence (eg self-defence or provocation) is raised the prosecution bears the onus of disproving it.
(4) The final element is proven by examining all the circumstances of the case and making an assessment of the accused's state of mind.
(5) It is open to the court on an indictment for intentionally doing grievous bodily harm under Section 315 to enter an alternative verdict of guilty of a lesser offence, eg unlawfully doing grievous bodily harm under Section 319.
(6) Here, the first element was proven as the complainant suffered amongst other things a broken jaw and the accused was responsible for causing that injury.
(7) The second element was proven as the State proved that the accused did not act in self-defence.
(8) The third element was not proven, given that harm was inflicted in the heat of the moment in a domestic setting.
(9) Accordingly, the accused was found not guilty of unlawfully doing grievous bodily harm, with intent, contrary to Sections 315(b) and (d) of the Criminal Code, but guilty of unlawfully doing grievous bodily harm, contrary to Section 319 of the Criminal Code.
Cases cited
The following cases are cited in the judgment:
R v Bawai-Pesoi [1965-66] PNGLR 210
R v Gahoso Simbane [1975] PNGLR 254
R v Hutchings (1972) No 710
R v Kaiwor Ba [1976] PNGLR 90
R v Kambe-Pare [1965] PNGLR 321
R v Meauri [1969-1970] PNGLR 254
The State v Albert Gias (2005) N2812
The State v Alphonse Dumui CR No 14 of 2006, 08.04.09
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Lenny Banabu (2005) N2871
The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07
TRIAL
This was the trial of an accused charged with unlawfully and intentionally doing grievous bodily harm.
Counsel
A Kupmain, for the State
R Awalua, for the accused
26 May, 2009
1. CANNINGS J: Norman Kukari, the accused, is a 29-year-old East Sepik man who lives with his family at Barema, near Bialla, West New Britain. On the evening of Saturday 16 February 2008, he was involved in an incident at Barema, with his sister-in-law, the complainant, Lynn Pokou, which has led to him being charged with the offence of unlawfully and intentionally doing grievous bodily harm to her.
2. It is alleged that the accused involved himself unnecessarily in a dispute between the complainant and his mother over a missing serving spoon. He got a piece of timber and struck the complainant in the head while she was standing on the steps of the house. He broke her jaw and she fell unconscious. She was two months pregnant and had a miscarriage.
3. The accused agrees that the complainant suffered serious injuries in the incident but claims that she caused them herself. She was so cross with his mother that she damaged the house and fell off the steps, he said. He also claimed that she swung a bushknife at him so he had to throw the timber at her in self-defence.
ELEMENTS OF THE OFFENCE
4. The accused has been charged under Sections 315(b) and (d) (acts intended to cause grievous bodily harm or prevent apprehension) of the Criminal Code, which states:
A person who, with intent ...
(b) to do some grievous bodily harm to any person ...
does any of the following things is guilty of a crime:—
(d) unlawfully ... doing a grievous bodily harm to a person ...
Penalty: Subject to Section 19, imprisonment for life.
5. To obtain a conviction the State must prove the three elements of the offence beyond reasonable doubt:
6. As to the first element, there is a definition of "grievous bodily harm" in Section 1 of the Criminal Code. It means:
any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.
7. The medical evidence proves that the complainant suffered a broken jaw and associated soft tissue injuries. She clearly suffered bodily injury of such a nature as to cause permanent injury to her health. She therefore suffered grievous bodily harm. However, the accused claims that he did not cause the injury. The harm was self-inflicted. So the first element of the offence is in dispute.
8. The second element raises the issue of whether grievous bodily harm was done unlawfully. Doing grievous bodily harm to another person constitutes an "assault" as defined by Section 243(1) of the Criminal Code. An assault is, by virtue of Section 244(1), unlawful unless it is authorised, justified or excused by law.
9. There are a number of possible defences, which, if successful, would authorise, justify and excuse the accused from criminal responsibility and render the bodily harm lawful. These defences, such as provocation, prevention of repetition of insult and self-defence, are set out in Sections 267 to 271 of the Criminal Code.
10. The accused relies on self-defence (and, in the alternative, provocation). He has adduced evidence in support of it, so the onus of disproving it rests with the prosecution. The second element therefore becomes whether the State has proven beyond reasonable doubt that the accused did not act in self-defence.
11. If the State cannot prove the second element, the accused will be found not guilty and it will be unnecessary to consider the third element. If, however, the second element is proven, the question of the accused's state of mind, raised by the third element, becomes relevant. Did he intend to do grievous bodily harm to the complainant or some other person?
12. If yes, he will be found guilty as charged. If no, he can, by virtue of Section 542 of the Criminal Code be found guilty of a lesser offence (constituted by the first two elements) such as unlawfully doing grievous bodily harm, which is an offence under Section 319 (R v Meauri [1969-1970] PNGLR 259).
ISSUES
13. The major issues that have to be decided are:
THE EVIDENCE
14. The State's case was based on the following evidence:
15. For the defence, two witnesses gave sworn evidence:
The complainant's evidence
16. Lynne Pokou said that it was about 8.30 pm. She was with her children and her sister-in-law, Norman's wife, Baza. They were going to the store to buy kerosene. As they were going past Norman's house his mother called out and asked where the serving spoon was as she wanted to serve the evening meal. Baza told her where it was but for some reason she got cross and swore back at her. Lyn yelled out 'Why don't you look for the spoon instead of swearing?' Then Norman's mother started swearing at Lyn, telling her that she was an adulteress and that her son has a lot of other ladies; and she also stuck her index finger up and down in the air, in Lyn's direction. Lyn says that Norman also swore at her. Then they argued further about family matters.
17. Lyn was angered by the conduct of Norman and his mother and went up the stairs and into the house and broke some of the blinds. Norman's mother told him to whip Lyn with a stick; and that is what he did. He whipped her with a two-metre long stick and knocked her off the steps. She suffered a broken jaw and other facial injuries and (being two months pregnant) had a miscarriage.
18. This happened on a Saturday and the next day she was taken to Bialla health centre and then to Kimbe General Hospital.
19. In cross-examination she denied having a bushknife in her possession at the time that Norman assaulted her. She denied swearing at Norman's mother. She denied being an aggressive person who was prone to violence. She said that Norman hit her only once but it was with great force. He was on the ground and she was on the steps. She is still angry with Norman for what he did.
The medical report
20. It was prepared by Dr Luna Amlau, Dental Officer, of Kimbe General Hospital. It shows that Lyn suffered a broken jaw and was hospitalised for nine days from 17 February 2008.
The accused's record of interview
21. The accused told much the same story to the police as he told the court: that he acted in self-defence. Lyn had a grass-knife and swung it at him. If he did not attempt to defend himself she would have chopped him.
The accused's sworn evidence
22. He agreed that the argument started over a serving spoon. But it was not his mother who started the argument. It was Lyn. She started swearing at his mother and went into the house and kicked the walls and damaged the house. He moved towards Lyn to stop her from swearing and to stop her destroying the house but when she saw him coming she swung a grassknife at him; and also swore at him. She must have thought he was intending to assault her. She swung it aggressively and he ducked and it whistled over his head. He fell and got a stick to defend himself.
23. She swung the grass-knife at him a second time and on this occasion, to prevent himself being chopped, he threw the stick at her. He pushed it at her. This blocked the grass-knife and she fell off the steps, and she became unconscious. Lyn is 'not a good lady, she is a very aggressive woman', according to Norman.
The accused's father's evidence
24. Anton Kukari says he has ten children. Norman is the second born. His first-born child, Charles, is married to Lyn. He witnessed the incident of 16 February.
25. It started when Anton's wife asked Norman's wife, Baza, where the serving spoon was as she was about to serve the evening meal. The whole family was sitting there and they wanted to eat their rice. There was a conversation about the serving spoon between his wife and Baza. Lyn got involved and became angry and swore at his six-year-old daughter and also at his wife. His eldest daughter, Esther, asked Lyn not to swear at her mother and then Lyn swore at Esther. Lyn came into the house and kicked the blinds and then when she was going down the steps she fell.
26. When Norman tried to stop her damaging the house any more he saw that she had a grass-knife so he threw a stick at her. Norman was trying to defend himself. He and Norman were surprised when Lyn fell a second time. He is sure that Norman did not mean to hit her hard.
27. In cross-examination Anton said that he tried to talk to Lyn to calm her down but she was very angry and kept on swearing. He tried not to take sides. He regards himself as neutral – an independent witness to what happened.
28. I will now consider the issues that were raised earlier in light of that evidence.
FIRST MAJOR ISSUE: DID THE ACCUSED DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?
29. The defence counsel, Mr Awalua, tried to argue that Norman did not cause the grievous bodily harm; that it was inflicted by Lyn herself when she fell of the steps. But this version of events is not borne out by the evidence.
30. If the evidence of Norman and his father is accepted, it was Norman's action in hitting her with the stick (which they say was in self-defence) which caused Lyn to fall off the steps. There was a direct causal connection between what Norman did and the injuries Lyn sustained. I find that there is no doubt that Norman did do grievous bodily harm to Lyn.
SECOND MAJOR ISSUE: DID THE ACCUSED ACT IN SELF-DEFENCE?
Elements of the defence
31. As the accused has given evidence in support of self-defence, the onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being that:
32. If the State cannot disprove at least one of those elements – ie where all of them exist – the defence of self-defence will succeed. The grievous bodily harm done to the complainant by the accused will be regarded as lawful.
33. Authorities for these principles are referred to in my decisions in The State v Albert Gias (2005) N2812, The State v Lenny Banabu (2005) N2871 and The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07 (where the defence of self-defence succeeded) and The State v David Yakuye Daniel (2005) N2869, The State v Ephraim Ria Boa (2008) N3436 and The State v Alphonse Dumui CR No 14 of 2006, 08.04.09 (where the defence failed).
Questions to be answered
34. I will restate the elements of the defence by posing five questions:
35. The State must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.
6. I will now address each question in turn.
1 Was the accused unlawfully assaulted?
7. The court is faced with two diametrically different bodies of evidence. Lyn denies assaulting Norman and denies carrying a grass-knife. Norman and his father say the opposite.
8. Having considered all the evidence about the incident, I conclude that the State has been unable to prove that Norman was not unlawfully assaulted. The answer to question (1) – was Norman unlawfully assaulted – is 'yes'.
2 Did the accused not provoke the assault?
9. I am satisfied that Lyn was the aggressor. I found the evidence of Norman and his father more convincing on this issue. I find that Norman rushed in to what was an explosive situation and that he was trying to sort things out.
10. The State has therefore been unable to prove that Norman provoked the assault. The answer to question (2) – did Norman not provoke the assault? – is 'yes'.
3 Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?
11. I tend to believe Norman's evidence that Lyn was armed with a grass-knife and that she was making threatening gestures in his direction. These gestures were sufficient to cause Norman to reasonably believe that he was in physical danger.
12. This question – was the nature of Lyn's assault such as to cause reasonable apprehension (ie belief) on Norman's part that he would at least suffer grievous bodily harm? – is answered yes.
4 Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?
13. Put another way, was there something else – other than reaching for the stick – that Norman could have done to prevent himself being killed or suffering grievous bodily harm?
14. Could he have run away, ie retreated? Yes, he could have. But, retreating before employing force is not an independent and imperative condition when self-defence is raised as a defence. Whether a retreat should have been made is a matter for the court to consider in deciding on the reasonableness of the accused's conduct. What the court has to decide is what a reasonable person in the position of the accused would have done in the circumstances (R v Kambe Pare [1965] PNGLR 321).
15. I conclude that Norman did believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm than by reaching for the stick.
Question 4 is answered yes.
5 Did the accused use only such force as was necessary for his defence?
16. This is the critical issue. Norman says he just pushed or shoved the stick at Lyn to ward off her assault on him. If he did not do something she would have chopped him. His evidence is supported by his father's evidence: Norman just threw the stick at her, said Anton Kukari.
17. The court can accept that Norman had to do something; and if all that he did was to push or shove the stick in Lyn's direction and she was just caught off balance and toppled off the steps, that would be a reasonable reaction on Norman's part.
18. But the evidence that he just pushed or shoved the stick towards Lyn cannot be accepted. She suffered a broken jaw and serious facial injuries. She was rendered unconscious and hospitalised for eight days. This indicates that she suffered a very considerable blow across the head. There was conflicting evidence about how far she fell to the ground. Even if it was the distance contended for by the defence it is not reasonable to believe that the fall would have led to the type and seriousness of the injuries she sustained.
19. I consider that Norman used more force than was necessary for his defence. As I said in Lenny Banabu's case, this element of the defence requires the court to apply an objective test as well as a subjective one. The question to ask is whether the accused had an honest and reasonable, though mistaken, belief that the force he used was necessary for his defence (R v Kaiwor Ba [1976] PNGLR 90). I consider that Norman's response to the assault on him was vicious and opportunistic. He went beyond what was required to repel a threat of the sort he faced.
20. Perhaps he honestly thought in the heat of the moment that he had to thwack Lyn across the head to defend himself. But that was not a reasonable belief. I have given him the benefit of the doubt by being prepared to accept a large part of his evidence. But the bottom line is that the defence of self-defence is only available to those who act reasonably, in all the circumstances.
Question 5 is answered no.
Conclusion re self-defence
21. The State has proven beyond reasonable doubt that the final element of the defence of self-defence does not exist. It only had to disprove one of them. Therefore the defence fails. Norman did not act in self-defence.
22. I also find that the defence of provocation under Section 267 of the Criminal Code is not available to Norman. The force he used was disproportionate to the provocation and it was likely to cause grievous bodily harm.
23. As no other defence is available to Norman, the grievous bodily harm he did to Lyn was unlawful. The second element of the offence with which he has been charged has been proven.
THIRD MAJOR ISSUE: DID THE ACCUSED INTEND TO DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?
24. This was not a premeditated attack on Lyn. The grievous bodily harm that was done to her by Norman is something that happened in the heat of the moment in the course of a family argument. The State has not proven beyond reasonable doubt that Norman intended to do grievous bodily harm to Lyn.
25. He is not guilty of the offence of intentionally doing grievous bodily harm.
FOURTH MAJOR ISSUE: SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?
26. I now consider whether Norman should be found guilty of the lesser offence of unlawfully doing grievous bodily harm, ie without intent, under Section 319 of the Criminal Code.
27. Section 319 states:
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.
28. Section 319 has only two elements: doing grievous bodily harm, and doing it unlawfully. Both elements have been proven in this case. I will therefore enter a verdict of guilty under Section 319.
VERDICT
29. The accused, Norman Kukari, is found not guilty of unlawfully doing grievous bodily harm, with intent, contrary to Sections 315(b) and (d) of the Criminal Code, but guilty of unlawfully doing grievous bodily harm, contrary to Section 319 of the Criminal Code.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused
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