|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 14 OF 2006
THE STATE
V
ALPHONSE DUMUI
Madang: Cannings J
2008: 8, 12, 13, 14 May, 2 September
2009: 8 April
VERDICT
CRIMINAL LAW – grievous bodily harm, with intent – trial – Criminal Code, Sections 315(b) and (d) – whether grievous bodily harm done to the complainant – whether accused acted in self-defence – whether intention to do grievous bodily harm proven – whether alternative verdict can be entered.
A man pleaded not guilty to intentionally doing grievous bodily harm to another man by shooting him with a home made spear gun. The State alleged that the complainant, though angry with the accused over a previous incident, was unarmed and did nothing to provoke the accused other than swear at him. The accused admitted shooting the complainant but said that he acted in self-defence as the complainant was attacking him with a bushknife and the incident happened in the course of a group altercation, in which his side was unarmed.
Held:
(1) The elements of the offence under Sections 315(b) and (d) of the Criminal Code are that the accused:
- did grievous bodily harm to the complainant;
- unlawfully;
- with intent to do grievous bodily harm.
(2) The first element was conceded to by the defence.
(3) The second element was proven as the State proved that the accused did not act in self-defence.
(4) The third element was not proven, given that harm was inflicted in a group fight in which both sides were armed.
(5) 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 Kambe-Pare [1965] PNGLR 321
R v Meauri [1969-1970] PNGLR 254
The State v Albert Gias (2005) N2812
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
Dates
The events referred to in this judgment occurred in 2005 unless otherwise indicated.
TRIAL
This was the trial of an accused charged with doing grievous bodily harm, with intent.
Counsel
J Wala, for the State
D Joseph, for the accused
8 April, 2009
1. CANNINGS J: Alphonse Dumui, the accused, is a 29-year-old villager from Sepa in the Bogia District of Madang Province. He has been indicted on a charge of intentionally doing grievous bodily harm to a fellow villager, the complainant, Casper Bararang Jnr. The State alleges that on the morning of Thursday 14 April 2005 he shot the complainant in the neck with his home made spear gun, known as a 'rubber gun'. The State alleges that the complainant and members of his family had gone to the accused's part of the village to talk to him about some problems that had arisen in the previous two days, including an alleged assault on a female relative of the complainant by the accused. The accused did not appear so the complainant and his people waited 25 minutes, during which time the complainant shouted and swore at the accused. The accused suddenly appeared and shot the complainant, the iron rods from the rubber gun penetrating the complainant's right neck and jaw, inflicting life-threatening injuries, it is alleged.
2. The accused pleaded not guilty. He admits shooting the complainant but says he acted in self-defence as the complainant was attacking him with a bushknife and the incident happened in the course of a group altercation, in which his side was unarmed.
THE CHARGE
3. 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.
ISSUES
4. The elements of the offence are that the accused:
5. 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.
6. Casper gave evidence that the iron rods penetrated his neck and jaw, that it was very painful, and that he could not remove the iron rods himself. He was admitted to hospital with the rods still stuck in his neck. This evidence was not disputed. The medical evidence describes the injury suffered by the complainant as life threatening. He spent two weeks in Modilon Hospital. He clearly suffered bodily injury of such a nature as to endanger his life. He therefore suffered grievous bodily harm. It was done to him by the accused so the first element of the offence is proven. This is not disputed by the defence.
7. 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.
8. An assault is, by virtue of Section 244(1), unlawful unless it is authorised, justified or excused by law. 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.
9. The accused relies on self-defence. 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.
10. 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?
11. If yes, he will be found guilty as charged.
12. If no, he can, by virtue of Section 542(2) 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 254).
13. The three major issues that have to be decided therefore are:
(1) Did Alphonse Dumui act in self-defence?
(2) If not, did he intend to do grievous bodily harm to Casper Bararang Jnr?
(3) If he did not intend to do him grievous bodily harm, should Alphonse Dumui be convicted of some other offence?
FIRST MAJOR ISSUE: DID ALPHONSE DUMUI ACT IN SELF-DEFENCE?
Elements of the defence
14. 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:
15. 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.
16. 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 and The State v Ephraim Ria Boa (2008) N3436 (where the defence failed).
Questions to be answered
17. I will restate the elements of the defence by posing five questions:
18. 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.
19. I will now address each question in turn.
1 Was the accused unlawfully assaulted?
20. The court is faced with two diametrically different bodies of evidence.
21. On the one hand, the complainant, Casper, and the only other State witness, Rudi Sangaroi, testified that they and other members of their family went to Alphonse's house to see Alphonse about an allegation that he had assaulted one of their female relatives the day before and had said inciting words in public. Casper and Rudi say that their group was unarmed. They waited outside the house for 20 to 25 minutes. Casper says that he called out for Alphonse and swore at him. Eventually he came out accompanied by a big group of people who were armed with spears, fishing guns, sling shots and sticks. Alphonse then fired a spear from the rubber gun, from a distance of three to five metres. It struck Casper in the neck. Casper said that Alphonse aimed the gun straight at him, held it with both hands and shot him. Rudi says that he was standing next to Casper, only one metre away, and he saw what happened. Both Casper and Rudi admit that one or more members of their group did at some stage cut and destroy vanilla plants, betel nut trees and other crops around the houses of Alphonse and his family. Casper maintained that that only happened after he was shot.
22. On the other hand, Alphonse, his brother Simm Kanagui and his niece, Sandra Kem, testified that it was Casper and his group who were the aggressors. The defence witnesses say that Casper and his group came armed with weapons including sticks, stones and grass knives.
23. Alphonse says that Casper's group caught him by surprise as he was in the garden with one of his sons. Another of his sons came running and said that Casper was at the house, swearing and calling out for him. Alphonse says he sent his sons to get a couple of his nephews to come and help. He then told his sister to go to the police station and report the matter. He said that Casper was armed with a bushknife and was the aggressor. Casper was about to cut him, so he took a step back. When Casper swung the bushknife at him, he released the trigger of the rubber gun he was holding. It was at that point – when Casper's hand and arm were in a downward position – that Casper's neck was left exposed. Hence the wires from the gun made contact with and lodged in Casper's neck.
24. Simm, a school teacher, was at school and was told that Casper and his mob had mobilised and were at Alphonse's house. He rushed to the house and found Casper and his mob there. He maintained that he and Alphonse were not expecting this trouble so they were unarmed.
25. Sandra said that Casper and his mob obviously came looking for a fight. They were swearing and shouting. Casper was heading straight for Alphonse. He called out "Where is Alphonse, the iron man?" She said that Casper hit her on the face, causing bleeding. She heard Casper and his group yell "Kill him! Kill him!"
26. It is not a straightforward task to decide which of the witnesses, if any, are telling the truth. None of them is independent. None of them gave obviously false or obviously truthful evidence.
27. Alphonse's counsel, Mr Joseph, has submitted that the State witnesses' evidence about the events of 12 and 13 April was hearsay. Casper and Rudi say that Alphonse beat up one of their uncles and also a female relative. But, as Mr Joseph pointed out, neither of them was at either incident. I agree with Mr Joseph's submission that this evidence is hearsay. However, I reject his related submission: that it follows that Casper and his relatives went to Alphonse's place on the 14th for no good reason. Fights happen for a reason. In this case the fight on the 14th was caused by the events of the 12th and the 13th. The accused himself gave evidence of what happened on those days. There was a land mediation that went wrong. A fight resulted. Alphonse was involved in the fight, though he denies starting it.
28. In this case I am not determining the rights and wrongs of the events of the 12th and 13th. It is the incident of the 14th, in which Casper was injured, that is the court's primary concern.
29. Although Casper's demeanour as a witness was generally sound, it is hard to believe that he and the big group who accompanied him to confront Alphonse were unarmed. Casper conceded that he was very angry with Alphonse and that he swore at him. Casper admits that his group cut and destroyed vanilla plants and other properties after he was shot. It is more likely than not that Casper and his group, in their angry and agitated state, were armed and that they did stage an assault on Alphonse.
30. Having considered all the evidence about the incident of 14 April 2005, I conclude that the State has been unable to prove that Alphonse was not unlawfully assaulted. The answer to question (1) – was Alphonse unlawfully assaulted – is 'yes'.
2 Did the accused not provoke the assault?
31. It could be argued that Alphonse provoked the assault by Casper and his group as – and he admitted this in his sworn evidence – he was the one who "slapped" (ie assaulted) Casper's female relative the day before. However, that provocative act was not committed on the 14th. This element of self-defence is, I consider, concerned with provocative acts that are committed immediately before the assault in question. I do not think that Alphonse committed any such act on the morning of 14 April.
32. The State has therefore been unable to prove that Alphonse provoked the assault on the 14th. The answer to question (2) – did Alphonse 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?
33. I tend to believe Alphonse's evidence that Casper was armed with a bushknife and that he was making threatening gestures in his direction. I am not, however, satisfied that the evidence supports a conclusion that Casper ran towards Alphonse and swung the bushknife at Alphonse. But Casper's threatening gestures, in the company of other armed and angry people, was sufficient to cause Alphonse to reasonably believe that he was in physical danger.
34. This question – was the nature of Casper's assault such as to cause reasonable apprehension (ie belief) on Alphonse'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?
35. Put another way, was there something else – other than reaching for his rubber gun – that Alphonse could have done to prevent himself being killed or suffering grievous bodily harm?
36. 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).
37. I conclude that Alphonse did believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm than by reaching for his rubber gun.
Question 4 is answered yes.
5 Did the accused use only such force as was necessary for his defence?
38. This is the critical issue. Alphonse says that he first pointed the gun at Casper to scare him off, but Casper took no notice and kept coming towards him and swung the knife at him. He fired the spear from the rubber gun when Casper was only one metre from him.
39. Casper denied swinging any knife at Alphonse and says that he was about five metres away when Alphonse aimed at his head and fired the spear that went into his neck.
40. As indicated previously, I do not accept Casper's evidence that he was unarmed. But nor do I accept Alphonse's evidence that Casper swung a bushknife at him. I have made a finding of fact that Casper made threatening gestures, and was angry. Alphonse reached for something with which to defend himself – the rubber gun – and it was reasonable for him to do that. However, I am satisfied that the evidence shows that Alphonse deliberately fired the shot at a vulnerable part of Casper's body – his neck. Neither of the defence witnesses apart from Alphonse (Simm Kanagui and Sandra Kem) gave evidence of the instant when Alphonse fired the shot. By contrast, both Casper and the other State witness, Rudi Sangaroi, gave evidence that Alphonse aimed directly at Casper when Casper was a few metres away from him. The weight of the evidence favours the version put forward by the State witnesses.
41. I consider that Alphonse 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 Alphonse'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.
42. Perhaps he honestly thought in the heat of the moment that he had to fire a shot at Casper's neck to defend himself. But that was not a reasonable belief. I have given Alphonse 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
43. 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. Alphonse did not act in self-defence.
44. As no other defence is available to Alphonse, the grievous bodily harm he did to Casper was unlawful. The second element of the offence with which he has been charged has been proven.
I now move to the next major issue.
SECOND MAJOR ISSUE: DID ALPHONSE DUMUI INTEND TO DO GRIEVOUS BODILY HARM TO CASPER BARARANG JNR?
45. This was not a premeditated attack on Casper. The grievous bodily harm that was done to him by Alphonse is something that happened in the heat of the moment in the course of a group altercation, in which each side was armed. The State has not proven beyond reasonable doubt that Alphonse intended to do grievous bodily harm to Casper.
He is not guilty of the offence of intentionally doing grievous bodily harm.
THIRD MAJOR ISSUE: SHOULD ALPHONSE DUMUI BE CONVICTED OF SOME OTHER OFFENCE?
46. I now consider whether Alphonse should be found guilty of the lesser offence of unlawfully doing grievous bodily harm, ie without intent, under Section 319 of the Criminal Code.
47. 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.
48. 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
49. The accused 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
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2009/309.html