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State v Ben (No 1) [2018] PGNC 165; N7254 (18 April 2018)

N7254

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1354 OF 2017

THE STATE

V

WILLY BEN

(No 1)
Palmalmal: Susame, AJ
2018: 16^th, 17^th & 18^th April

CRIMINAL LAW – Offence of grievous bodily harm –s 319 Criminal Code -Trial – Use of bush knife- Injuries sustained deep laceration wound of left ankle with compound fracture of bone- Defence of self-defense in s. 269 (1) (2) (a) – factual situation when defence becomes available- Onus of prove remains with the State to negate the defence - Unsworn testimony by an accused from the dock – Less weight to be given as opposed to sworn evidence-

Cases cited:
R v Paul Maren (1971) N615
R v Muratovic [1967] Qd R15
R v Pari-Parilla (1969) N525
R v Ulel [1973] PNGLR 254.
The State v Nagiri Topoma [1980] PNGLR 18
The State v Steven Isaac Awoda (1983) N416,

Counsel:
Mr. Lukara Rangan, for the State
Mr. Andrew Tunuma, for the Accused

JUDGMENT ON VERDICT

18^th April, 2018

1. SUSAME, AJ: The indictment by the State charging the accused is that on13^th August 2017 he caused grievous bodily harm to the victim Philip Joel an offence provided under section 319 of the Criminal Code Act.
   
2. Early indications from both counsels was that it was going to be a plea matter. However, when the case came before the court on presentation of indictment on 7^th April 2018 and upon arraignment accused disputed the facts and stated he had a reason to cut the deceased. Court probed with the counsel of the accused what possible statutory defence would the defence rely on. Counsel indicted defence of self defence.
   
3. Case was adjourned generally while I commenced trial in another case. Matter then came on for trial on 16^th April 2018.
   

CRIME OF GRIEVOUS BODILY HARM

4. Crime of grievous bodily harm is provided for under section 319 and quoted below.
   

“S. 319 GRIEVOUS BODILY HARM.

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.”

EVIDENCE

5. By consent prosecution tendered into evidence the following documentary evidence:
   
   1. Statement of witness Arthur Numa dated 17 August 2017 marked exhibit Á,
   2. Statement of witness Peter Enep Shoty dated 17^th August 2017 marked exhibit B
   100. Statement of witness Timo Ruri dated 17^th August 2017 marked exhibit C
   4. Statement of witness Philip Joel (victim) dated 17^th August 2017 marked exhibit D
   5. Medical report of Naomi S Tommy (Health Extension Officer) dated 21^st August 2017 marked exhibit E
   6. Statement of witness Constable Tobby Mark (corroborator) undated marked exhibit F
   7. Statement of witness constable Kenny Robby (investigator) undated marked exhibit G
   8. Photograph taken of the injury to victim’s left ankle marked exhibit H
   9. Record of interview dated 28 September 2017 (Pidgin & English versions) marked Exhibit I (1 & 2)
      
6. The only witness who testified in court was Siri Arthur by leave of court and which defence counsel raised no objection to.
   
7. For the defence accused was the only one who gave an unsworn statement in defence from the dock.
   

ARGUMENTS

8. Court has heard oral submissions from both counsels. I lay out the summary of arguments advanced as I understood. Mr. Tunuma counsel of the accused argued accused had given unsworn testimony in his own defence that he removed the bush knife from the victim and cut the victim with it on his left ankle. Accused would therefore be excused by operation of s 269 (1) & (2) (a) of the Code as he was acting in self defence. Counsel submitted evidence is before the court and it is now up to the court whose evidence to be believed as truthful? It is up to the court to decide. In that respect I had an impression that defence submission was not forceful.
   
9. Mr. Rangan’s response is that the onus is on the accused to show force used was not intended to cause grievous bodily harm or cause death. I am not so sure what Mr. Rangan meant when he made such a proposition. I will respond to that in latter part of my discussions. In this case accused intended to cause grievous bodily harm. He had ambushed the victim. Counsel argued accused’s version of what happened is totally different from the State witnesses. His evidence was never tested by the State through cross-examination. He asked court to take note of evidence by witnesses Philip Joel (victim) and Siri Arthur who testified in court. Counsel argued the reason for the attack was that earlier on victim had refused the request by the accused to use the tractor victim normally drives to go look for beer after all it was the accused who secured the job for the victim.
   

ISSUE

10. In my view there is one main issue to be decided? That is, whether accused had acted in self –defence when he slashed victim’s left ankle with a bush knife?
    

VERSIONS OF THE INCIDENT

11. Accused’s account of what transpired is totally different from the version by the prosecution witnesses.
    
12. The account given by the accused is this. He was working at night and returned to the house at 10pm. He saw lights in front of his kitchen. People were drunk and playing cards, gambling. He saw his flowers chopped down and lots of rubbish, empty bottles lying around his area. He stopped the gamblers from playing cards. This made Peter Enep Shoty who was drunk swore at him saying “eat your mothers pussy what will you do” in pidgin language. Accused felt bad on hearing the insults tore up the cards and ordered the gamblers to disperse. Philip Joel (victim) reacted and told accused why he did that as they had spent a lot of money. Philip then started throwing punches at him supported by Arthur Numa and Peter Enep Shoty. Philip took out a long grass knife hidden under his trousers by his side and swung at him three times but missed. On the third attempt the accused grabbed hold of the victim’s hand pulled the grass knife off him and cut his leg. He said he did that to prevent him from taking another weapon. Arthur and Shoty called out I had cut Philip hold him and assault him. In fear of his life accused ran away into the oil palm trees.
    
13. In contrast the version given by the prosecution witnesses is different. Witnesses gave their own version of facts of what happened. Without setting out in detail the evidence of each witnesses generally, their evidence is similar in some basic facts with slight variations. What comes out from the evidence is this. People were playing cards that evening at the Bruno Camp, at a place called Drina. Witness Arthur Numa was just watching on while witness Peter Enep Shoty was doing marketing. Accused arrived at the camp drunk at about 9.30 pm and started behaving in a disorderly manner. He joined the card game and not happy with the game he lifted up the canvas disturbing the card game. This started a scuffle and a fight between him and couple of persons including the victim. Accused went for a bush knife but was however stopped by others. The commotion had subsided and the card game had stopped. Everyone had dispersed and some minutes at about 10pm after the commotion had subsided the accused came shouting looking for the victim. As the victim was climbing the steps to his house the accused swung the bush knife cutting the victim on his left ankle and he fell down onto the ground.
    

COURT’S FINDINGS

14. Court has considered the arguments advanced. First let me hold a brief discussion of the law on Defence of self-defence. Section 269. Self –defence against unprovoked assault. Sub section (1) reads:
    

“When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause and is not likely to cause, death or grievous bodily harm.

Subsection (2) If-

(a) the nature of the assault is such as to cause reasonable apprehension of death or

Grievous bodily harm; and....”

15. Remoteness and lack of easy accessibility resource material through internet or otherwise where trial was conducted I could not make reference to the recent authorities in our jurisdiction on the defence. With limited resources I have cited few old cases on what the courts have decided on the defence.
    
16. It has been held in R v Paul Maren (1971) N615 that “where the evidence suggests self-defence, the onus is on the State to show the absence of any of the requirements of the section.” The Prosecution bears the burden of disproving self-defence where the evidence discloses self-defence as a defence: R v Pari-Parilla (1969) N525. By case authorities the position of the law is clear in respect of the burden of disproving the defence of self-defence. It remains with the State. Burden does not shift to the accused to show or prove that the force he used was never intended to cause grievous bodily harm or death as proposed by Mr. Rangan.
    
17. The degree of force for the accused to use for the purpose of defence which may be considered lawful for the defence to be available was considered in R v Muratovic [1967] Qd R15. The court held:
    

“The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm.”

18. Evidence has sufficiently established without any iota of doubt accused cut the victim on his left ankle with a bush knife. Question is was he acting in self-defense?
    
19. What evidence is there adduced by the prosecution? Court has considered the evidence from prosecution’s witnesses. Most of the evidence tended by consent remain intact and accepted by the court. Evidence of the only witness who testified remains un-contradicted despite defence counsel’s suggestions in an attempt to make out a case for the accused.
    
20. How credible and convincing is the accused version of facts? Accused chose to make an unsworn statement in his defence in the dock.
    
21. It was held in The State v Nagiri- Topoma [1980] PNGLR18:
    

“The practice in the National Court has always been that where an accused makes a statement from the dock, that is, unsworn statement, he is never subjected to cross-examination either by the State or the judge, however he must subject himself to cross-examination when he chooses to give sworn evidence from the box.”

22. And as to the weight to be given to accused’s unsworn statement from the dock there are ample authorities on that. It is now trite law by case authorities an unsworn statement from the dock does not have the same weight as sworn testimony. There is a clear distinction between the two why that is so. An unsworn statement by the accused from the dock is never tested or scrutinized through cross-examination or further questioning by the prosecution and the judge. Whereas a sworn statement goes through that check and verification process. (See The State v Steven Isaac Awoda (1983) N416, Rv Ulel [1973] PNGLR 254.)
    
23. I adopt and apply the principles of law on the defence of self- defence and weighing of evidence that has been adduced by the parties.
    
24. Weighing the evidence on the justice scale I am inclined to accept the prosecution’s evidence which is far more credible, truthful, convincing, untainted and unchallenged as opposed to the accused version of facts.
    
25. I find from the evidence scuffle or commotion at the gambling place few minutes earlier that evening had stopped. Everyone had dispersed. Victim was returning to his house unarmed when he was cut on the leg as he was climbing the steps. There wasn’t any scuffle between the victim and the accused right at the steps of victim’s house apart from the earlier commotion which had ended. Where is the justification of using a bush knife on an unarmed person who was posing no real threat or who was never attacking or assaulting the accused? Facts drawn from the evidence do not establish such a situation described in s269 (1) or (2) (a) for that statutory defence to be available to the accused. I hold that the account or version accused gave is far from the truth, merely to make up a case to evade criminal prosecution.
    
26. It can safely be inferred from the evidence accused was certainly not too happy when Philip turned his request down to use his tractor to go look for beer or when Philip refused to accept a bottle of beer accused had offered him. Then again accused was not happy and obviously angry with Philip because how could the victim refuse his request and later have a scuffle with him when the accused was the very one who assisted in securing a job employment for the victim.
    
27. Accused was emotionally worked up, coupled with consumption of alcohol and went after Philip and cut him with the bush knife causing a very serious permanent injury to his left ankle almost completely severing it.
    
28. The conclusion reached from all the discussions is that defence of self defence available under s.269 of the Code fails. Accused is not excused and is criminally liable for the offence of grievous bodily harm. I therefore, return a verdict of guilty against him.
    

_________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused