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Daure, Regina v [1967] PGSC 12; [1967-68] PNGLR 19 (15 February 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 19 - Regina v David Daure

[1967-68] PNGLR 19

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

DAVID DAURE

Port Moresby

Frost J

15 February 1967

CRIMINAL LAW - Unlawful assault - Bodily harm - Self-defence - Onus of proof - The Criminal Code, ss. 1, 31(3), (4), 271, 272, 339 - Court and Laws Adopting Ordinance (Amended) Papua 1889.

The accused having been charged with an assault occasioning grievous bodily harm under s. 339 of The Criminal Code, the Crown must establish beyond reasonable doubt every element of that misdemeanour and self-defence being raised on the evidence, must exclude self-defence beyond reasonable doubt.

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; Chan Kau v. The Queen[1954] UKPC 40; , [1955] A.C. 206, applied. R. v. Howe [1958] HCA 38; (1958), 100 C.L.R. 448, followed.

Without provocation, the accused struck A. on his back below his neck. A fight, in which A. sustained bodily injury, ensued. Evidence raised whether the accused in continuing in the fight acted in self defence but did not exclude beyond reasonable doubt that A.�s assaulting the accused was of such violence as to cause the accused�s reasonable apprehension of death or grievous bodily harm and to induce the accused to reasonably believe the necessity of his using force in self-defence to avoid death or grievous bodily harm.

Held:

N1>(1)����� That the provisions of sub-ss. (3) and (4) of s. 31 of The Criminal Code do not apply to those circumstances.

N1>(2)����� That s. 272 of The Criminal Code does apply so that, the evidence not excluding the matters set out above, the accused was not criminally responsible for the force he applied to A.

R. v. Pickard, [1959] Qd.R. 475; R. v. Johnson, [1964] Qd.R. 1, referred to.

Criminal Trial.

David Daure was charged on indictment that on 26th November, 1966, he unlawfully assaulted one Allan-Oa occasioning him bodily harm. All relevant facts appear in the reasons for judgment.

The statutory provisions referred to appear sufficiently in the reasons for judgment herein.

Counsel:

Croft, for the Crown.

Broadley, for the accused.

Cur. adv. vult.

15 February 1967

FROST J:� The accused man, David Daure, is before this Court upon an indictment that on 26th November, 1966, in Papua, he unlawfully assaulted one, Allan-Oa, occasioning him bodily harm. This is a crime under the Code punishable by up to three years imprisonment (s. 339).

This case comes before me under the Criminal Procedure Ordinance as a judge sitting alone.

The witnesses called by the Crown were Allan-Oa, whom the Crown alleges was unlawfully assaulted, and Avivido-Guikau who, together with Allan-Oa and the accused man, was at Tatana on Saturday, 26th November, 1966. Now Tatana is a small village over a causeway from Port Moresby. Allan-Oa is a bulldozer driver and Avivido is a driver; both men speak English sufficiently well to give their evidence in English.

The accused man is the brother-in-law of Allan-Oa, having lived with him at Tatana apparently for some time. Tragedy struck the accused�s small family because his baby had died and he, unfortunately, was out of work and was thus unable to provide the clothes and coffin required for the child�s burial. It was Allan-Oa, his brother-in-law, who came to his assistance and provided the money. The accused man employed himself during this period when he was out of work by mending an old canoe, which had been bought by Allan-Oa, and getting it into a seaworthy condition. It is a most regrettable thing that between these two friends, relations by marriage, a fight developed as it did develop on 26th November, 1966, and I feel that the cause of it was drink.

On that day both men had been drinking in Port Moresby and in the afternoon they returned to Tatana. Other men were drinking including Avivido. Allan-Oa went down to get some cigarettes at the trade store, and it was on his return that the trouble developed. The accused man asked him, as he said in evidence, for a loan of his canoe, on which he had spent so much time in repair. Although Allan has denied this on oath, I was not satisfied with his evidence on this point, and I feel that the accused did make some request for a loan of the canoe to enable his wife to get some water, but whether this was the case or not is of little moment because the accused then proceeded to tamper with the boat or gave some indication that he was going to tamper with it. Allan objected and the accused man struck Allan on the back below the neck. The accused was under the influence of liquor. Although Allan says he himself was sober, I would say that to some extent he was under the influence of liquor.

The two men then fought, and in the course of the struggle Allan�s right index fore-finger was either pushed by him into the accused�s mouth or worked by the accused into the accused�s mouth from the position near his face where Allan was holding his hand, and the top of Allan�s finger was bitten off by the accused. There is no doubt but that this struggle was initiated by the blow on the back given by the accused man, and there is no doubt but that it was he who bit the top off Allan�s right fore-finger.

The Crown has established that it was bodily harm within the meaning of the Code which was done to Allan-Oa as the injury plainly interfered with the health and comfort of Allan. The defence relied on by Mr. Broadley was self-defence. Mr. Broadley relied upon s. 31(3), (4) and s. 272 of The Criminal Code. Section 31(3), (4) is as follows:

N2>�31.��� A person is not criminally responsible for an act or omission, if he does or omits the act under any of the following circumstances, that is to say:

. . . .

(3)����� When to do the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;

(4)����� When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution:

But this protection does not extend to an act or omission which would constitute the crime of treason or wilful murder or murder, or any of the crimes defined in the second paragraph of section eighty-one and in section eighty-two of this Code, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.�

It is unnecessary that I should attempt to define with finality the limits of these subsections of s. 31. It seems to me that sub-s. (4) is quite irrelevant to the facts of this case. The situations to which s. 31 (4) appears to relate are suggested by the facts in R. v . Pickard[xxxii]¹. Section 31(3) appears to me to relate to a situation prior to an assault developing when actual and unlawful violence is threatened.

Sections 271 and 272 state the law applicable to self-defence when an assault has actually taken place. The provisions are as follows:

N2>�271.�� 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 effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.�

N2>�272.�� When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.�

It will be seen that in s. 271 the ambit of the defence of self-defence is wider than is provided for in s. 272, for under the first paragraph of s. 271 it is lawful for a person unlawfully assaulted to use such force as is reasonably necessary to make an effectual defence against even �relatively minor� assaults (as Stanley J. referred to them in R. v. Johnson[xxxiii]²) which are not of the degree of violence required for s. 272 to operate. The only condition under that paragraph of s. 271 is that the force used is not intended and is not such as to cause death or grievous bodily harm. This condition does not apply to the �major unprovoked. assaults�, (as Stanley J. called them in R. v. Johnson[xxxiv]³), provided for in the second paragraph of s. 271. Under s. 272 the protection which is afforded a person who is in the wrong initially and then assaulted applies only to assaults of the degree of violence therein provided for. Thus under the Code if a person is initially in the wrong in that he has unlawfully assaulted another or has provoked an assault from another, and he is then assaulted, if he uses force against an assault of insufficient violence to satisfy either of the conditions of s. 272, the defence of self-defence does not avail him. The person so initially in the wrong who is thus subjected to such a relatively minor assault is left without the defence of self-defence in respect, ex hypothesi, of the initial wrong and also of any subsequent force used by him.

It is necessary for me to apply s. 272 only because, as I have said, upon the facts the only conclusion to be drawn is that the accused man by striking Allan on the back commenced the assault, or by that means provoked an assault from Allan, and Mr. Broadley does not rely upon s. 271.

The next matter is to consider the onus of proof which, in my judgment, is vital in this case. At common law in a criminal prosecution the onus is upon the Crown to establish beyond reasonable doubt every element of the crime: Woolmington v. Director of Public Prosecutions[xxxv]⁴. At common law it is plain that the Crown must also exclude beyond reasonable doubt the defence of self-defence: Chan Kau v. The Queen[xxxvi]⁵; R. v. Howe[xxxvii]⁶. The Code makes no provision for the onus of proof. Under The Court and Laws Adopting Ordinance (Amended) of 1889 of Papua, the principles and rules of common law that for the time being shall be in force and prevail in England apply in the Territory and it is undoubted that the onus of proof at common law applies in the Territory (s. 4).

Thus the Crown has first to exclude beyond reasonable doubt any one of the conditions provided in s. 272 that I have referred to. The accused, in evidence, said that he struck Allan on the back but Allan turned round and grabbed him and he, in turn, grabbed Allan, and they then rolled to the ground. One was on top of the other at one time, and another on top at another time, and then Allan applied his hand to his neck. He thought that at this stage Allan was going �to kill me�, that Allan put his finger in his mouth and touched the bottom of his tongue and that made him think that he wanted to �break� his tongue or his �Adam�s apple�. The evidence given by Allan was that it was the accused man who was putting his finger into Allan�s eye, so to stop this, which was painful to him, he put his hand near the accused�s throat and tried to push him away. He was pushing fairly strongly and then the accused man worked his mouth round to get the index finger in, and it was then that the top of the finger was bitten off. Needless to say the struggle then ceased.

There are two views of the facts. One is that this was merely a Saturday afternoon scuffle between two men affected by drink. The other is that an ugly situation might have developed; Allan with his hand on the other�s throat and possibly putting his finger down his throat might have done some injury as to endanger the accused�s life.

Now the accused man does not have to satisfy me of anything. Am I left with a reasonable doubt as to the existence of these conditions under s. 272, having heard Allan�s evidence and having heard the accused man? Upon consideration I have reached the conclusion that the Crown has not excluded beyond reasonable doubt any of the conditions prescribed by s. 272. The fight could quite easily have developed in intensity as my experience in this Territory has shown. Allan�s hand was firmly on the accused�s throat, the fight was continuing and was such as might well have caused reasonable apprehension of grievous bodily harm, and as to induce the accused to believe, on reasonable grounds that it was necessary to use force in self-defence. Further, I am not satisfied that the accused used more force than was reasonably necessary, nor that it was practicable for him to retreat from the struggle.

So, being left in that state of reasonable doubt on the whole of the evidence in this case, it is my plain duty to acquit the accused man, and I so order.

I order that he be discharged from custody.

Accused acquitted and discharged from custody.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[xxxii][1959] Qd.R. 475.

[xxxiii] [1964] Qd.R. 1, at p. 12.

[xxxiv][1964] Qd.R., at p. 13.

[xxxv][1935] A.C. 462.

[xxxvi][1955] A.C. 206.

[xxxvii][1958] HCA 38; (1958) 100 C.L.R. 448, per Dixon J. at p. 459.