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State v Temo [1981] PGNC 12; N293 (13 March 1981)

Unreported National Court Decisions

N293

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
ANDREW TEMO

Mendi

Narokobi AJ
12-13 March 1981

NAROKOBI AJ:

INTRODUCTION

Andrew Temo stands charged that he, with intent to do some grievous bodily harm, did unlawfully wound a female by the name of Yalinu, contrary to s.323(a) of the Criminal Code on 19th August, 1980.

FACTS NOT IN ISSUE

It is not in dispute that Yalinu was a passenger in the vehicle driven by the accused. Nor is it disputed that she sat next to the accused in the driver’s cabin while Taketap sat next to the door, on the left side, in the cabin.

Again, it is not in dispute that the girl, Yalinu, was wounded. Her jaw was fractured; she also had minor injuries to her head. The other fact not in issue is that the accused and his line have paid a sum of K400 cash and 8 kina shells to the victim’s line. It is not in dispute that Yalinu landed on the bridge side and human specimens, including hair and blood, were found stuck to the side railing above the wood.

ISSUES OF LAW TO BE DETERMINED

The only issues left are, first, whether the wounding was caused unlawfully by the accused and, secondly, whether he had any intention to do or cause some unlawful grievous bodily harm to the girl.

THE PROSECUTION CASE

The Prosecution case is that the girl was propositioned three times by the accused. On each occasion she refused and for that refusal, she was rewarded with three spanner attacks on her chin by the accused, and later, at the second bridge on the Korogo river, along the Mendi-Hagen highway, the accused threw the victim off the vehicle on to a bridge; and that she was prevented from falling down by a metal railing. The State case is that the intent was to cause unlawful wounding which did eventuate.

The Prosecution case depends on the evidence of the accused, the evidence of Unk, and whatever, if any, that can be inferred from all the circumstances including the evidence adduced on behalf of the accused.

THE DEFENCE CASE

The defence case is simply that the girl fell off the vehicle and got herself injured. The defence says, in view of the nature of the area, the fact that at the road junction there was a tradestore, and at the bridge some houses within view, it is highly improbable that the accused did what he is being charged with doing.

MY FINDINGS

It would seem incredible that the accused would do what the victim alleges he did. But it is even more incredible, if not fantastic, that the accused would come before my court and tell this court that though the girl was next to him in a confined cabin space, he knew nothing at all of what actually happened to the girl.

If indeed what happened to the girl was that Teketap had propositioned the girl and she had tried to free herself, whereupon she fell and injured herself, then there was no reason for the accused to maintain remarkable ignorance of what actually happened.

I have had a chance to observe the accused. He is guarded and discreet about his answers. Indeed he is most economical with his answers. The accused’s explanation, taken with my observation of his demeanour, gives a ring of secrecy and untruth. Why would he want to drop Unk at Mendi river bridge when she was already wet, and when there was no shade there for her to take cover? He could have taken her to the road junction where there was a tradestore. The only commonsense explanation is that he harboured an evil intention. The accused had a ready explanation for the suggestion that he attacked Yalinu with a spanner. The spanner was not in the vehicle. Others had taken it the previous day!

I find specifically that Yalinu had been propositioned three times, on three different occasions, by Andrew. I also find that Andrew had attacked Yalinu with a wheel spanner three times along the road, between Mendi river bridge and the Korogo river bridge. That Andrew actually attacked Yalinu is supported by the undisputed fact that it was the right jaw that was fractured. That was the side closest to the accused. The attack was the direct result of the refusal, thus there is no doubt that the accused intended to, and did, unlawfully wound the victim.

As for the fall off the bridge, if the accused did not actually throw the girl out, then he was fully aware that Teketap was the one who either pushed her out, or had done nothing to prevent her from falling out. After all, she was next to Andrew and she was in between Andrew and Teketap.

The accused has come to this court and informed me that the door was defective at the time and was locked by means of a wire. That could not have been of great moment to him as it was not specifically brought to Police attention. The Police witness thought the left door was normal though he did not open and shut it.

I have observed the scene. The junction is actually not fully visible from the bridge. The houses by the bridge are some distance away. There is slight grass in between, and if anything happened fast there, it would be done before the occupants would know. On our visit I noticed too that all the doors of two or three houses were shut and there was no-one about.

The river itself is narrow, but it is quite deep; I estimate it to be 15 feet deep. Where the girl landed is about two yards from the edge of the bridge and it falls into the river bank, some three feet.

The two boys who gave evidence on behalf of the accused did not actually see the girl fall off. If the head was what they say came off first, then it is more consistent with a push or a throw out, than a jump out. If she had jumped off she would do so with legs first. In my view, the boys’ evidence strengthens the girl’s evidence. However she feels, they could not have seen it. On the contrary, their evidence tends to support the State case, namely that the girl was pushed off, but when the accused saw the two boys, he left the vehicle, picked the girl up and put her in the cabin while his mate looked on. Teketap evidently did not leave the vehicle, suggesting that he would have sat in the car to watch, or that he was claiming innocence, or maintaining a protest. Yalinu said Andrew and Teketap put her in the vehicle, but she did not say if both had gone out of the vehicle to pick her up. She shought this was so in answer to my question, but said specifically that she felt Andrew’s hands on her hips.

Assuming Andrew did not proposition the victim, did not spanner her and did not push or throw her over the bridge, would the girl jump off for no apparent reason? Would she have jumped off at Teketap’s proposition and Andrew know nothing about the proposition? Commonsense objects to negative answers.

The accused must be held responsible for the consequences of his actions. He propositioned the girl. He attacked her with the spanner. Whether he pushed her over the bridge or she fell off or jumped off, he was close by, almost skin to skin. He did nothing to prevent her jumping off, if indeed she jumped off, which I do not believe she did. He is the agent of the consequence of his intentional actions. He is, in my view, fully responsible for the intentional, unlawful wounding. I find him guilty as charged.

See July 1980 issue of The Criminal Law Review, an article by R.A. DuffN293.html#_edn521" title="">[dxxi]¹ and R. v. HyamN293.html#_edn522" title="">[dxxii]².

Before I end, I might say that I did attempt to find a benefit of doubt in favour of the accused, b vain. I also attempted to d to see if s.554 might operate to enable me to return a verdict of lesser culpability within s.327. In this attempt, I looked at Regina v. Meauri & Ors.N293.html#_edn523" title="">[dxxiii]³; Regina v. BauaiPesoiN293.html#_edn524" title="">[dxxiv]⁴ and Reg. v. PolhillN293.html#_edn525" title="">[dxxv]⁵.