Papua New Guinea Law Reports - 1969-70
[1969-70] PNGLR 254
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
MEAURI AND OTHERS
Bereina
Clarkson J
7-10 April 1970
CRIMINAL LAW - Grievous bodily harm - “Bodily injury” - Nature of injury - Self-defence - Challenge to fight - The Criminal Code, ss. 271[cccxliv]1, 272[cccxlv]2, 317[cccxlvi]3, 320[cccxlvii]4, 579[cccxlviii]5, 584[cccxlix]6 .
If, upon an indictment for unlawfully causing grievous bodily harm contrary to s. 320 of The Criminal Code, the evidence establishes that while intending to cause grievous bodily harm the accused wounded only, the accused may be convicted under s. 320 because:
(a)      the evidence establishes that he is guilty of the offence of unlawfully wounding with intent to do grievous bodily harm contrary to s. 317(1) of the Code; and
(b)      by the operation of s. 579 of the Code, a person charged upon indictment with the offence referred to in (a) may, if the evidence establishes it, be convicted of an offence against s. 320 of the Code (Reg. v. Bawai-Pesoi, [1965-66] P. & N.G.L.R. 210, followed); and
(c)      by the operation of s. 584 of the Code a person charged with an offence against s. 320 may, if the evidence establishes the offence referred to in (a), be convicted of the offence against s. 320 with which he is charged.
Reg. v. Manga Gabi, [1963] P. & N.G.L.R. 97, followed.
Whether ss. 271 and 272 of the Code apply to an accused who accepts a challenge to fight discussed. Meaning of s. 320 of the Code discussed.
Criminal Trial.
Meauri, Aitsi, and Baki were jointly charged on an indictment containing two counts: (1) that they unlawfully caused grievous bodily harm to Aihi, and (2) that they unlawfully assaulted Aihi and thereby did him bodily harm. The relevant facts appear in the judgment.
Counsel:
Bradshaw, for the Crown.
Williams, for the accused.
10 April 1970
CLARKSON J:  The three accused are jointly charged on an indictment containing two counts: (1)that they unlawfully caused grievous bodily harm to Aihi, contrary to s. 320; (2)that they unlawfully assaulted Aihi and thereby did him bodily harm contrary to s. 339. The charges arise from events which occurred in Mou village in the Kairuku sub-district during November 1969.
The accused Baki had a sow which left the village to have its litter in the bush. Pigs belonging to other villagers went into the bush and returned with their litters but Baki’s sow did not return. He searched for it and found nothing. He conceived the notion that Aihi and his relative Parama, who had a shotgun, had killed and eaten the pig.
On the night of his return from his fruitless search he told his wife of his suspicions and he told her in a voice intended to be heard by other villagers, including Parama and Aihi who were in a nearby house. Aihi was annoyed, and I think justifiably. There were four men in 200 or more in the village who had shotguns and there was nothing to show the pig had been shot. The pig’s disappearance could have resulted from any one of a variety of causes and Baki, when he gave evidence, made no attempt to justify his accusation.
Aihi, incensed by the accusation, challenged Baki to a fight. The challenge was accepted and the two men confronted each other in the centre of the village. Aihi was armed with a fighting stick, some six feet or more long, and Baki with a hunting spear constructed of a piece of iron rod, sharpened and barbed and attached to a bamboo handle.
In physique and weapons they were evenly and fairly matched. Early in the trial I was inclined to think that the spear was capable of inflicting more serious injury than the fighting stick but I am satisfied on the evidence that both weapons in the hands of an experienced user are dangerously and equally effective.
The witness Oata intervened in an attempt to prevent the combat. His efforts were brushed aside.
There is some conflict in the evidence of what then occurred but I accept the substance of the accounts given by Oata and Baki.
Aihi struck at Baki with his fighting stick but Baki sidestepped the blow and trapped the end of the stick on the ground with his foot. This gave him sufficient time to plunge his hunting spear into Aihi’s left breast. Aihi released his hold on his fighting stick and with both hands attempted to withdraw the spear. Baki picked up the fighting stick and struck Aihi on the head. He raised the stick to strike again but this time Oata’s further intervention persuaded Baki to desist. Baki dropped the fighting stick and, as a victor, returned to his house.
By the efforts of Parama, who then arrived on the scene, and of the wounded Aihi the spear was turned, thus disengaging the barb, and carefully removed.
Aihi’s injuries were treated locally and then he was flown to Port Moresby. There, in an exploratory operation, Aihi’s chest was opened, principally to assess the extent of the damage caused. It was found that by the best of good fortune, the head of the spear, after penetrating the chest wall just above the left nipple, had travelled downwards and laterally causing no damage to the vital organs or other structures past which it travelled, to come in contact with the lower part of the left lung where it did not penetrate but to which it caused a contusion. It was also found that the bleeding thus caused had ceased and the amount of blood released was sufficiently small to justify the conclusion that it could without great difficulty have been absorbed in the natural processes of the body.
On the facts of the case as thus shortly summarized a number of matters arise for consideration.
The Crown’s opening suggested that Aihi had been pursued by Baki and forced to stand and fight in self-defence. The evidence as it emerged however, showed this view of the facts to be completely insupportable.
Defence counsel took the view, I think quite properly, that Baki could not show that he acted in self-defence. He accepted a challenge to fight with weapons which made it highly likely that grievous bodily harm or even death could result to either or both combatants.
He need not have accepted Aihi’s challenge and, in my view, could have retreated to safety at any time.
On the assumption that ss. 271 and 272 of the Code relating to self-defence are available on a charge under s. 320, neither section can assist him. The first paragraph of s. 271 applies only where the force used in defence is not intended and is not such as is likely to cause death or grievous bodily harm. I have no doubt that the force used was intended to cause grievous bodily harm and that it was such as was highly likely to cause grievous bodily harm.
The second paragraph of s. 271 would have no application because Baki did not believe that he could not otherwise preserve himself from death or grievous bodily harm, nor could he have had reasonable grounds for any such belief. As I have said, he could well have retreated from the engagement but such a thought was far from his mind. He was determined to win the fight to which he had been challenged.
Section 272 would have no application if for no other reason than that at no stage did he decline further conflict nor did he quit it nor retreat from it as far as was practicable.
Similar considerations arise in relation to the possible defence of provocation.
Assuming that s. 269 is available to Baki, (cf. Stanley J. in R. v. Sabri Isa[cccl]7 and Philp A.C.J. in Reg. v. Johnson[cccli]8 ) it is quite clear that the force used was intended and was likely to cause death or grievous bodily harm.The substantial ground on which the defence relied in respect to the first count was that the injury caused by Baki to Aihi did not amount to grievous bodily harm.
The difficulties involved in construing s. 320 have been discussed on a number of occasions including Knutsen’s case[ccclii]9 . See especially Stanley J. at p. 171. The difficulty here arises from the wording of the definition “any bodily injury of such a nature as to endanger or be likely to endanger life ...”. The particular problem arising is that where an injury is inflicted the likelihood of that injury causing death depends not only on the nature of the injury but on a number of other factors. For instance, a penetrating wound to the chest wall made by a surgeon in an operating theatre would seem to be potentially less dangerous than the same wound inflicted, as it was here, in a village by a spear kept under the house and ordinarily used for spearing pigs and wallabies.
But the defence argued that it is only the nature of the wound which is relevant. Thus there was here, firstly, a penetration of the chest wall, secondly a chipping of a rib and, thirdly, a contusion of the lung, all of which were on the evidence likely to heal without further treatment, leaving no disability. On this basis, it is said, the nature of the weapon used and the fact that it passed dangerously close to vital organs in the chest are immaterial.
This is not a case where the test adopted is whether the force used is likely to cause grievous bodily harm as in ss. 269 or 271, nor one where whether or not the act done is likely to endanger life is selected as the test.
This is an attractive argument, although in the present case I do not think it would assist the accused. Having regard to the medical evidence and the approach adopted in such cases as Humphries v. The King[cccliii]10 I think it can be said here that the penetration of the chest wall by opening the chest to infection was likely to endanger life.
However, I prefer to base my conclusion elsewhere.
I have already said that, in my view, Baki intended to cause grievous bodily harm and even if the injury inflicted did not amount to grievous bodily harm, it was undoubtedly a wounding. On the evidence, therefore, Baki was guilty of an offence described in s. 317(1) of the Code, namely, unlawful wounding with intent to do some grievous bodily harm. It is clear from s. 579 that if indicted for that offence under s. 317(1) a person can be convicted under s. 320. (See R. v. Bawai-Pesoi[cccliv]11 .)
By s. 584 if a person is indicted under s. 320 and if the evidence establishes guilt for the above-mentioned offence under s. 317 (1), the person may be convicted under s. 320 and such conviction carries with it the immunity from a prosecution under s. 317 (1) referred to in the second paragraph of s. 584. This is a similar approach to that adopted by Ollerenshaw J. in Reg. v. Manga Gabi[ccclv]12 .
Accordingly Baki is guilty of unlawfully causing grievous bodily harm to Aihi.
I turn now to the case against Meauri and Aitsi.
It is necessary for me only to state formally in summary form what I have already indicated earlier in the trial.
The Crown case was that these two accused accompanied Baki to aid him in his attack on Aihi and that in fact each of them struck Aihi with a fighting stick. Apart from Aihi, those claiming to have seen this are persons interested in the welfare of Aihi whom as a relative they support.
Further, the tendency of the evidence is to suggest that the blow by the spear was the first blow struck at Aihi. There was no evidence of any words or actions preceding the combat from which any inference implicating Meauri or Aitsi can be drawn. Their presence as bystanders, if they were present, does not implicate them. If they subsequently struck blows, this alone does not establish they were parties to the spear attack. In any event, I prefer the substance of Oata’s evidence, and it has not been proved to my satisfaction either that Meauri or Aitsi was a party to Baki’s attack on Aihi nor that either of them himself attacked Aihi.
Meauri’s case was not improved by the evidence he called, but while I do not think he and his wife were honest witnesses this does not displace the view I have already expressed.
My verdict is as follows:
Meauri Not Guilty on both counts.
Aitsi    Not Guilty on both counts.
Baki    Guilty on the first count. I return no verdict on the second count.
Verdicts accordingly.
Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cccxliv]Section 271 provides: “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 to defence, even though such force may cause death or grievous bodily harm.”
[cccxlv]Section 272 provides: “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. . . .
“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 which to kill or 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 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.”
[cccxlvi]Section 317 reads in part: “Any person who, with intent to maim, disfigure, or disable, any person, or to do some grievous bodily harm to any person ... —
(1)        Unlawfully wounds or does any grievous bodily harm to any person by any means whatever; or
(2)        Unlawfully attempts in any manner to strike any person with any kind of projectile; or . . .
is guilty of a crime. . . .”
[cccxlvii]Section 320 reads in part: “Any person who unlawfully does grievous bodily harm to another is guilty of a crime. . . .”
[cccxlviii]Section 579 is as follows: “Upon an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence which is established by the evidence, and of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.
“Upon an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence which is established by the evidence and of which the unlawful causing of that result is an element.”
[cccxlix]Section 584 is, in part, as follows: “If, on the trial of a person charged with any indictable offence, the evidence establishes that he is guilty of another indictable offence of such a nature that upon an indictment charging him with it he might have been convicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.”
[cccl][1952] Q.S.R. 269.
[cccli][1964] Qd.R. 1.
[ccclii][1963] Qd.R. 157.
[cccliii][1943] Q.S.R. 156.
[cccliv][1965-66] P. & N.G.L.R. 210.
[ccclv][1963] P. & N.G.L.R. 97, at p. 107.