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State v Gul [2022] PGNC 483; N9987 (2 August 2022)

N9987

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1033 OF 2017

THE STATE

JACOB GUL

Bomana: Sambua, AJ
2021: 19^th,20^th, 23^rd, 24^th, 31^st August, 28^th, 29^th, 30^th October
2022: 20^th, 21^st, 28^th January, 2^nd August

CRIMINAL LAW – grievous bodily harm under section 319 of the criminal code – not guilty plea – trial – sufficient evidence – accused admits assaulting victim in Record of Interview – defence of aiding in self-defence under section 271 not applicable – not necessary to find accused guilty on an alternative charge not charged on an indictment - guilty of grievous bodily harm.
Cases Cited:

State v Ray Johnson [2016] N6379
R v Polhill (1973) No 734.
State v Murray Oa [2021] N9379
Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999

Counsel:
Ms G. Gunson, for the state
Ms M. Worinu, for the Defendant

02^nd August, 2022

SAMBUA, AJ: The accused Jacob Gul was indicted to stand trial on a charge of grievous bodily harm under section 319 of the Criminal Code chapter 262

Background of the case

The accused was a Probationary constable with the Royal Papua New Guinea Constabulary. On the 12^th of November 2016, the accused and other policemen were on a motorised patrol in a 25-seater bus at Vani Place, Gordons sometime between 2.00 pm and 2.30 pm.
The State’s allegation was that at that time the victim Edgar Ali had captured the mobile telephone thief and handed him over to the Police Officer who had attended to the commotion. He (victim) then followed the Police Officer to the Police bus when he was attacked and punched by the same Police Officer. As a result, he fell down and as he was attempting to get up, the Police Officer kicked him on his chin causing a penetrating wound on his chin.

Arraignment

On arraignment, the accused pleaded not guilty to the charge of grievous bodily harm and a trial was convened.

The State’s Evidence

The State’s evidence consists of sworn oral and documentary evidence. The sworn oral evidence was elicited from eyewitnesses Edgar Ali (victim), Dr John Tsiperau, Georgina Gale, Robert Ali and Abraham Ali

Sworn Oral evidence

Edgar Ali (victim) was the second State witness. He is a 36-year-old man from a mixed parentage of East Sepik and Central Provinces. He lives with his father, Robert Ali, who is a Police Officer and resides at the Gordon Police Barracks in the National Capital District.
On the 12^th of November 2016, he was at his father’s house at Gordon’s Police Barracks together with his cousin brother Abraham Ali. There was a small party to remove the mourning house when their niece, Georgina Gale, reported to them that a boy had stolen her mobile telephone handset.
Upon hearing that, he (Edgar Ali) was the first to go to the place where the alleged theft of the mobile telephone handset had occurred. There he got hold of the suspect of the mobile telephone handset theft and at the same time policemen in a 25-seater bus arrived and attended to the situation.
The suspect was handed over to the Police Officer who attended to the situation. The suspected thief was escorted to the bus and placed inside the bus. However, when he (Edgar Ali) approached the Police bus and was peeping in, he was punched by a police officer, and he fell down. As he tried to get up, the same Police Officer kicked him with the boot he was wearing causing a penetrating wound on his chin.
He was unable to identify the Police Officer because the incident happened so fast. In court, he pointed to his chin where the police officer had kicked him. There was some sort of a scar or mark visible but not so clear because he (victim) had a dark skin complexion.
After the Police Officer had kicked him, he suffered a penetrating wound to his chin and was taken to the Pacific International Hospital (PIH) where he was treated. He was released 3 hours later after undergoing observation by the PIH hospital staff.
Dr John Tsiperau was the first State witness. He is a medical doctor by profession and has been working for over 20 years after graduating from the University of Papua New Guinea’s Medical School.
He has been with the Pacific International Hospital for the last 2 years, working in the Emergency Department together with Dr Manoj Rayan. Dr Manoj Rayan reports to him and is currently on leave in India.
Dr John Tsiperau also stated that he is also the person in charge of the Business Records of PIH and as such he was aware of the Medical Report by Dr Manoj Rayan on the victim, Edgar Ali. Therefore, deposed an affidavit to have the Medical Report by Dr Manoj Rayan tendered into evidence and to provide expert evidence on that Medical Report. The Medical Report was tendered and marked as Exhibit “B”.
In his oral evidence he described the wound as a penetrating wound which required a big force to cause such an injury. He also stated that falling on the grass or even on a rough surface like bitumen or cement surface will not cause such an injury. There must be a strong force used to cause such a penetrating wound.
Georgina Gale was the third state witness who gave sworn oral evidence. She told the court that she is 23 years old and of a mixed parentage of East Sepik and Gulf Province and resides at ATS (Air Transport Squadron) for 3 years.
She told the court that on the morning of the 12^th of November 2016, after her mobile telephone handset was stolen, she argued with the suspected mobile telephone handset thief near the Gordons market area. After that, she went and reported to her uncles, Edgar Ali and Abraham Ali.
She further stated that when her uncle Edgar Ali heard that her mobile telephone handset has been stolen, he went out to investigate and confronted the mobile telephone thief in which a scuffle ensued, and he overpowered the mobile telephone thief.
At the same time a Police 25 seater bus arrived and the mobile telephone thief was handed over to the policeman who attended and was placed inside the bus. She said that the victim Edgar Ali had followed the policeman and the mobile telephone thief to the bus. She was following closely behind.
As soon as her uncle Edgar Ali reached the bus, he was punched by the policeman and after he had fallen, the same policeman kicked him with his boots on his (Edgar Ali) chin and causing him to bleed from the wound he received as a result of that kick.
She said that from where she stood which was about 4 metres, she could clearly see everything. She denied seeing Edgar Ali attacking or struggling with the policeman. She was able to identify the accused and pointed him out in court as the policeman who punched and kicked Edgar Ali.
Robert Ali was the fourth State witness who gave sworn oral testimony. His evidence is not relevant in so far as the issue of assault and self-defence is concerned except to confirm that when he arrived at the scene, he confirmed the presence of the accused Jacob Gul inside the 25-seater Police bus.
Abraham Ali was the fifth and final state witness who gave sworn oral evidence. He is 41 years old from East Sepik and is employed by the Department of Finance for 15 years now.
He told the court that on the afternoon of the 12^th of November 2016, he was at the scene when the policeman assaulted and kicked his cousin brother Edgar Ali. He identified and pointed out the accused in court as the policeman who punched and kicked the victim, Edgar Ali.
He was standing some 15 metres (witness box to entrance door of Bomana court room) away when he saw the policeman punch and kick Edgar Ali. There was nothing obstructing his view. From where he was standing, he could clearly see the policeman punching and kicking Edgar Ali.

Documentary Evidence

Record of Interview dated 24/11/16 – Pidgin and English. Pidgin version Exhibit “A” and English version Exhibit “A1”:

In Question and Answer 12, the accused admitted his presence and assault on the victim Edgar Ali.

Question 12: Can you tell me what actually happened during that time?

Answer: “During that time we were on police operation for FIFA under 20 women’s soccer World Cup and we did our patrol to S/C Gideon Ulapapik’s house at Gordons Police Barracks and got an esky and got some cold water for drinking and we were driving out from the Police Barrack where we saw some drunks assaulting some members of the public at Vani Place and we saw that they were in possession of offensive weapons such as screw drivers, off cut planks so we stopped the bus on the side of the road and went over to where the commotion was and saw that they were bashing a suspect that they accused of stealing a mobile phone.

We stopped the group from assaulting the suspect and told them that the suspect was in Police Hands now we escorted him back to the police bus and got him into the bus and shut the door to the bus.

From there the complainant now identified to be Edgar came and told us that you policeman always lie and take suspects in and let them go free later.

Let him come down and we will deal with him properly. I could see that Edgar was drunk as his eyes were red and his speech was slurred, and his movements were not steady, so I ordered him to leave as he was already under Police Custody.

He did not listen, and he wanted to push the door of the bus and come in and at the same time I saw that he was holding a Philips screwdriver with a yellow handle so I got off the bus and tried to remove the screw driver from his hand. I struggled with him, and I got a cut on my hand, and I saw that he was so aggressive so I pulled the screw driver very hard out of his hand he fell on the edge of the cement and got his injuries, I did not use other force to assault him.

I got back into the bus and sat with the suspect. From there all the other drunkards charged and started to assault us and Edgar’s father came and told us that he will deal with us good and proper. When he said that the crowd with some of the drunkards and some of their children came and attacked us with our uniforms. They even broke the rear lights of the Police bus.

From there he told us to report to the nearest Police Station which was Gordons Police Station, and he will also bring his son down.

We went down to Gordons Police Station and waited there however he did not bring his son but he himself (Mr Robert Ali) came down to the station.

We thought he was going to bring the complainant of the lost phone but that too did not eventuate. We later send a message card to the Police Operations Room and reported the matter”.

Medical Report, Exhibit “B” tendered through Dr John Tsiperau attached to his affidavit:

TO WHOMEVER IT MAY CONCERN

27 years old male EDGAR BANATTI ALI was brought into Pacific International Hospital Emergency Department by his relatives on 12/11/16 at around 4 pm with history of physically assaulted by Police Officer. History of the injury was that he was kicked on the face with a boot leg causing laceration on his jaw with bleeding.

Time of Incident 2 pm – 2.30 pm. 12/11/16

On initial Examination on arrival

Laceration to his jaw with excessive bleeding
4 cm x 2 cm x 3 cm laceration to his jaw extending to oral cavity
No history of loss of consciousness
No other injuries
Vitals were stable – BP124/65, Pulse 92/min, Spo2 – 99% RA

Statement of Samuel Koy – Exhibit “C”

28. Samuel Koy is a Senior Constable with the Royal Papua New Guinea Constabulary attached to the Forensic Science Centre, National Capital District. He has been doing crime scene duties for 12 years.

On the 14^th of November 2016, he was requested by Sergeant Aaron Silas of Gordon Police Station to take photograph of a Grievous Bodily Harm victim Edgar Ali. He took 3 photographs. Photographs 1 and 2 on one A4 sheet and photograph 3 on one A4 sheet.
In his statement at paragraph 5, he stated that:

“the victim sustained lacerated lower lips with six (6) clinical stitches to the exterior and five (5) clinical stiches to the interior of the lower lips. These are shown in the photographs labelled 1 to 3”

Statement of Aaron Silas, Exhibit “D”

30. His statement was tendered by consent. He is a Police Sergeant attached to Gordon Police Station and also resides at Gordon Police Barracks. He investigated the assault on the victim Edgar Ali.

No Case to Answer Application

31. At the end of the State’s case the defence made a no case to answer application on the basis that the evidence adduced by the State was insufficient and did not establish the elements of the charge of grievous bodily harm under section 319 of the Criminal Code.

32. The No Case to Answer Application was refused after I ruled that the evidence adduced by the State sufficiently established the elements of the charge of grievous bodily harm under section 319 of the Criminal Code.

The Defence Case

The defence went into evidence by calling the accused Jacob Gul who gave sworn oral evidence and called three (3) other witnesses who also gave sworn oral evidence, the three witnesses were Gideon Ulapapik, Reo Geno and Sau Anton
The accused Jacob Gul was the first defence witness. His evidence was that he is a police officer attached to the Four (4) Mile Traffic Police. He gave evidence that on the 12 of November 2016 he was on duty with 9 other Police Officers, patrolling along the Gordons's area. At the Gordons circuit toward the Police barracks there was a commotion and the police including himself attended to it. The commotion involved the victim and a boy who was suspected of stealing a mobile phone. The victim followed the boy and the accused to where the Police bus was parked on the opposite side of the road and demanded the release of the boy for him to further deal with him. The victim had a screwdriver with a black and yellow handle. He further told the court that the victim was under the influence of alcohol as he smelled of alcohol, and his speech was slurred and had difficulty in walking straight.
As the victim attempted to gain entry into the bus with the dangerous weapon, he stopped him(victim) but he insisted. The victim refused to hand-over the screwdriver to him. After pulling the screwdriver back and forth, the accused finally fend the victim off with his other arm and removed the screwdriver. As a result, the victim fell on the concrete pavement and cut his lower lip.
The accused confirmed that the driver, Senior Constable Gideon Ulapapik was in the Police bus at the time of the incident.
The second witness for the defence was Senior Constable Gideon Ulapapik who was the driver of the Police bus. He told the court that at that time, he was inside the bus. He saw the victim with a yellow and black handle screwdriver following the accused Jacob Gul and "the Goilala boy" to the bus. He saw the struggle between the accused Jacob Gul and the victim over the screwdriver. He told the court that the accused pushed the victim and pulled the screwdriver off from the victim and as a result the victim fell on the concrete pavement. There were police officers inside the bus when the victim tried to gain entry into the bus and was pushed off by the accused.
He also told the court that the victim sustained injuries to his forehead after he was pushed off the Police bus by the accused and fell on the concrete surface face down. When he was queried further, he changed it to the facial area.
The third defence witness was Senior Constable Reo Geno. He told the court that he stood outside beside the back wheel of the Police bus where it was parked. From where he stood and to the main entry of the bus, he agreed that it was about 7 metres. He told the court that he knew the victim and his dad who is a Senior Police Officer, and they live at the same barracks. That time, he saw the victim with a screwdriver demanding the release of the boy from the police custody. The victim attempted to gain entry to the Police bus but the accused Jacob Gul stopped him.
He saw the struggle between the victim and the accused where the accused pulled the screwdriver off the victim by pushing him with his left arm. The victim fell on the concrete pavement face down. And when the victim got up, he saw the victim's lower lip bleeding. The Police could not charge the victim for obstruction of police duties and other charges as his father was the Chief Superintendent.
The fourth and last witness for the defence was Sau Anton who is from Chimbu Province and a street vendor. He sells betelnut at the Gordons market area. He told the court that on the 12^th of November 2016, he was there and saw the incident between the accused and the victim. He was about 5 metres away from the Police bus and saw the victim with a black and yellow handle screwdriver and was pointing it at a boy who was already in police custody and was demanding the release of the boy as he walked around the front of the Police bus to the main entry door of the bus.
He saw the victim who was under the influence of alcohol as he was swearing, continuously spitting and not walking properly who attempted to gain entry to the Police bus. The victim put one leg inside the bus and a police officer whom he identified to be the accused, stopped the victim from entering the Police bus.
He also told the court that he saw the accused and the victim pull back and forth the screwdriver. The police officer was bigger than the victim so he pushed the victim off and pulled the screwdriver from him. The victim fell and and when he got up, he saw blood on his lower lip.

Analysis of the Evidence

The State’s evidence was that the accused Jacob Gul without lawful justification assaulted the victim Edgar Ali on the afternoon of the 12^th of November 2016 and as a result, the victim suffered a severe cut to his lower lips of his mouth which required six (6) clinical stitches to the exterior and five (5) clinical stiches to the interior. This evidence was not contradicted by the defence.
The defence on the other hand, had submitted both in the No Case to Answer Application and in its submission on verdict that the injuries caused by the accused Jacob Gul did not establish and satisfy the required elements of the charge of grievous bodily harm under section 319 of the Criminal Code, hence the charge of grievous bodily harm against the accused must fail and the accused be found not guilty and acquitted of the charge of grievous bodily harm under section 319 of the Criminal Code.
Alternatively, the defence submitted that the actions of the accused was done in self defence of the boy who was accused of stealing the mobile telephone handset under section 271 of the Criminal Code who was being assaulted by the victim.
However, the evidence from the accused Jacob Gul, himself and his three witnesses, in my view did not support this contention by the defence. I found it very hard to understand and believe what the accused said and demonstrated in court how he struggled with the victim and dis-armed him (victim) of the screwdriver. According to Dr Tseperau, the injury suffered by the victim was caused by a strong force. He said falling from a bus onto the bitumen or a cement pavement would not result in such an injury. It will require a stronger force.
The other three defence witnesses’ evidence were of no assistance to the defence’s case because their respective evidence on what they saw and did were unreliable and unbelievable as there were contradictions in their respective evidence. For instance:
1. Witness Gideon Ulapapik told the court that there were officers still inside the bus while the accused and witness Reo Geno told the court that all Police Officers went outside.
2. The second witness Gideon Ulapapik also told the court that the victim sustained injury on his forehead whilst the accused and the other two defence witness told the court that the victim sustain injury to his mouth.
1. The defence fourth witness Sau Anton was a betelnut vendor sitting on an higher elevation on the opposite side of the Police bus entry door. From that location one could not have seen the struggle between the accused and the victim and the victim falling face down on the cement pavement and getting injured on his mouth. Yet he told the court of how the accused push off the victim. This is incredible. He must have had a super vision eyes to see through the Police bus to the other side where the entry door was
1. The demonstration by the accused on how he struggled with and pushed off the victim would not have resulted in the victim falling face down. The victim was likely to have landed on his back.
2. The defence third witness Reo Geno was standing some metres from behind the Police bus and his view would have been obstructed and could not have seen how the accused assaulted the victim
I have heard the witnesses that came into court and gave evidence both for the State and the defence. Whilst they were giving evidence in court, I also observe their demeanours in court. I was more impressed with the State witnesses’ demeanour than that of the defence witnesses. As I have alluded to above, the defence evidence had discrepancies and were untruthful witnesses. They appeared to be hiding the evidence as to how the victim Edgar Ali received the injury to his lower lips and how the accused assaulted the victim. I tend to believe the State witnesses evidence to have more credence over the defence version of the events that unfolded at that very moment the accused assaulted the victim by kicking him on his lower chin with a Police issued boot as described by the State witnesses Edgar Ali, Georgina Gale and Abraham Ali.

The law

Grievous Bodily harm

Section 319 of the Criminal Code provides:

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.

In my ruling in the No case to Answer Application by the defence, I ruled that the evidence adduced by the State sufficiently established all the elements of the charge of grievous bodily harm under section 319 of the Criminal Code. I was satisfied with my ruling in the No Case to Answer Application and therefore will adopt it as part of this judgment. Hereunder is extract of my ruling in the No Case to Answer Application:

“To answer the first issue, let’s look at the elements of grievous bodily harm. The crime of grievous bodily harm is created by section 319 of the criminal Code chapter 262.

Section 319 states:

“A person who unlawfully does grievous bodily harm to another person is guilty of a crime”

And grievous bodily harm is defined in section 1 as;

“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”.

The Oxford Advanced Learners dictionary defines grievous as

“serious or severe wound”.

The same Oxford Advance Learners dictionary defines grievous bodily harm as

“a serious injury caused by a criminal attack.”

After discussing the crime of grievous bodily harm under section 319 of the Criminal Code and its definition under section 1 of the Criminal Code as well as the definition in the Oxford Advance Learners dictionary, in my view the injury suffered by the victim Edgar Ali would easily fall into the definition of grievous bodily harm which is supported and corroborated by the Medical Report tendered together with the affidavit of Dr John Tsiperau and marked as Exhibit “B” and the three (3) photographs that were tendered and marked as Exhibits “C1” to “C3”.

Although section 1 defines grievous bodily harm as any 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, the qualification for our present purpose is that it is likely to endanger life or likely to cause permanent injury to health.

In my view the injury need not be life threatening or will cause permanent injury, as long as it is a serious or a severe injury from an unlawful or a criminal attack as defined by Oxford Advance Learners dictionary.

So the elements of the charge of grievous bodily harm are as stated in the case of State v Ray Johnson [2016] N6379 by Anis AJ (as he then was)

“let me set out the elements of the offence grievous bodily harm:

person(1)
who unlawfully(2)
does grievous bodily harm(3)
to another(4)

(Numbering is mine- Anis AJ)

Now, I have looked at the case law. It shows that the elements of grievous bodily harm vary in some cases, but not to an extent outside the confines of section 319. Regardless, the two main elements are who unlawfully and does grievous bodily harm

The three photographs depict a serious injury to the victim and am sure that it was very painful and agonising to the victim especially during eating and consumption of liquid whilst nursing the injury which Dr John Tsiperau told the court that the injury is likely to leave a scar. The scar was visible when victim Edgar Ali pointed it out in court where he was kicked by the Police officer.

A scar is a disfiguration on a surface of a skin which is usually permanent. Hence qualifying as permanent injury as defined in section 319 of the Criminal Code Chapter 262.

Therefore, I am satisfied that the evidence adduced by the State thus far establishes all elements of the charge of grievous bodily harm under section 319 of the Criminal Code and the assault on the victim by the accused was uncalled for and unjustified in law. Hence the answer to the first principle of no case to answer is in the affirmative.”

Further to and in addition to my ruling in the No case to Answer Application, Section1 of the Criminal Code defines Bobily Harm as:

“Bodily harm" means any bodily injury that interferes with health or comfort.”

In my view “bodily harm” is an integral element of the charge of Grievous Bodily Harm, which is to interfere with the health and comfort. I am sure the injury inflicted by the accused on the victim, interfered with the victim’s health and comfort. As I ruled in the No Case to Answer Application:

The three photographs depict a serious injury to the victim and am sure that it was very painful and agonising to the victim especially during eating and consumption of liquid whilst nursing the injury which Dr John Tsiperau told the court that the injury is likely to leave a scar. The scar was visible when victim Edgar Ali pointed out in court where he was kicked by the Police officer.

The next question is whether the accused assault on the victim was justified in law?
The accused raised the defence of aiding in self-defence under section 271 later in the course of the trial when the defence went into evidence.
Section 271. Aiding in self-defence provides:

“Where is it lawful for a person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.”

In the Record of Interview in Q & A12. which was tendered into evidence and marked as Exhibit “A” & “A1”, the accused told the police that:

“We stopped the group from assaulting the suspect and told them that the suspect was in Police Hands now we escorted him back to the police bus and got him into the bus and shut the door to the bus.

From there the complainant now identified to be Edgar came and told us that you policeman always lie and take suspects in and let them go free later.

He did not listen, and he wanted to push the door of the bus and come in and at the same time I saw that he was holding a Philips screwdriver with a yellow handle, so I got off the bus and tried to remove the screwdriver from his hand. I struggled with him, and I got a cut on my hand, and I saw that he was so aggressive, so I pulled the screwdriver very hard out of his hand he fell on the edge of the cement and got his injuries, I did not use other force to assault him.

The accused in his sworn oral evidence told the court that the fight involved the victim and a boy who was suspected of stealing a mobile phone. The victim followed the boy and him (accused) to where the Police bus was parked on the opposite side of the road. The victim demanded the release of the boy for him to further deal with him. The victim had a screwdriver (black and yellow in colour). He further told the court that the victim was under the influence of alcohol as he smelled of alcohol, and his speech was slurred and had difficulty in walking straight.
He further told the court that as the victim attempted to gain entry into the bus with the dangerous weapon, he stopped him(victim) but he insisted. The victim refused to hand-over the screwdriver to him. After pulling the screwdriver back and forward, the accused finally fended the victim off with his other arm and removed the screwdriver. As a result, the victim fell on the concrete pavement and cut his lower lips.
In my view, his answer to Q&A 12 in the Record of Interview and his sworn oral evidence in court falls short of qualifying him to relay on the defence of Aiding in Self Defence under section 271 of the Criminal Code. The boy he wanted to safe was already in his custody and was safe inside the Police bus. There was no need for him to go out and disarm the victim and in doing so he caused him (victim) grievous bodily harm.
In my view, the accused used extreme force to inflict the injury to the victim and that the force was not proportionate to the victim’s threats and was illegal and unlawful. Therefore, based on the evidence of the State witnesses Edgar Ali, Georgina Gale and Abraham Ali with the Medical Report and the oral evidence of Dr Martin Tseperau, I find that the accused kicked the victim with his Police issued boot which caused that injury to the victim
I have considered the evidence from both the state witnesses and that of the defence. I have also observed the witnesses that were called and who gave oral evidence in court. I am more impressed with the demeanor of the State’s witnesses that were giving evidence. I was not impressed at all with the defence witnesses’ evidence, and their demeanors were wanting.
Therefore, I am of the view that the accused used extreme force to cause such injury to the victim and that the force was not proportionate to the victim’s threats and was illegal and unlawful.
This now brings me to the question of should the accused be found guilty on an alternative charge other than the charge of Grievous Bodily Harm?
The defence through Miss Worinu, had vigorously submitted that the State should have included an alternative charge on the indictment and relayed in an old case of R v Polhill (1973) No 734.
She also referred to a very recent decision by His Honour Salika CJ in State v Murray Oa [2021] N9379 whereby His Honour Salika CJ found that the evidence did not establish all the elements of the charge of GBH and therefore submitted that the State cannot submit for an alternative charge if it has not charged it as an alternative charge on the indictment.
With due respect, I have read the full judgement of His Honour Salika, CJ in the case of State v Murray Oa (supra) and I find the submission by the defence counsel to be misleading. In that case, His Honour Salika CJ went on to find the accused guilty and convicted him on an alternative charge of unlawful wounding which was not charged on the indictment as an alternative charge after he found that the assault by the accused on the victim was unlawful.
I am of the view that, that analysis by the chief Justice in the above case equally applies to this case and I adopt it as part of my reasoning in this judgment that despite the State having not charged an alternative charge on the indictment, the courts still can find an accused guilty of an alternative charge the evidence establishes.
In a recent Supreme Court decision in Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999 (15 September 2020), it was held that:

(1) If the only charge on an indictment is wilful murder and, after trial, all elements of that offence are not proven, s 539 of the Criminal Code allows the Court, if satisfied of the elements, to enter a conviction for an alternative offence of murder, manslaughter, unlawful grievous bodily harm, unlawful assault doing bodily harm, unlawful wounding or unlawful assault.

(2) It is not necessary, for the Court to convict an accused of a lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder, murder or manslaughter.

In this case however, I am satisfied that the evidence adduced by the State established all elements of the charge of grievous bodily harm under section 319 of the Criminal Code Act and the assault on the victim by the accused was uncalled for and unjustified in law. Therefore, do not intend to take the cause to find on an alternative charge as I am satisfied that the State has proven its case against the accused. Therefore, I find the accused Jacob Gul guilty and convict him on a charge of Grievous Bodily Harm under section 319 of the Criminal Code.

Order of the Court

68. The accused is found guilty and convicted on a charge of Grievous Bodily Harm under section 319 of the Criminal Code Act.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Kopunye Lawyers: Lawyer for the Defendant

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