N4299
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1206 OF 2008

THE STATE

V

CAROL PETER

Madang: Cannings J
2011: 4, 12, 16, 31 May

VERDICT

CRIMINAL LAW – grievous bodily harm, Criminal Code, Section 319 – trial – whether the accused did grievous bodily harm to the complainant – whether alternative conviction available.

The accused was charged with unlawfully doing grievous bodily harm to the complainant by striking her on the face with an agricultural instrument, causing severe pain and suffering and loss of a tooth. The accused admitted having an altercation with the complainant, as a result of which the complainant lost a tooth, but said that it was a self-inflicted injury as the complainant had pulled her (the accused's) hand into her mouth and bit her fingers and then she (the accused) pulled her hand out of the complainant's mouth and that this caused the tooth, which was already loose due to a pre-existing injury, to come out.

Held:

(1)	There are two elements of the offence under Section 319: that the accused "did grievous bodily harm" to the complainant; and that she did it "unlawfully".

(2)	To determine whether the first element is satisfied, reference must be made to the definition of "grievous bodily harm" in Section 1 of the Criminal Code: "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".

(3)	The second element is proven if there is no lawful justification or excuse for the accused's action.

(4)	It is open to the court on an indictment for doing grievous bodily harm under Section 319 to enter an alternative verdict of guilty of a lesser offence, eg unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340) and serious assault (Section 341).

(5)	Here, the first element was not proven as the evidence did not show that the complainant's injuries were as serious as claimed. Therefore the accused could not be found guilty of the offence she was charged with.

(6)	However, as it was proven that she assaulted the complainant and caused her bodily harm and did so unlawfully, the accused was found guilty of assault occasioning bodily harm, contrary to Section 340 of the Criminal Code.

Cases cited

The following cases are cited in the judgment.

R v Hutchings (1972) No 710
R v Meauri [1969-1970] PNGLR 259
The State v Buka Mapusi, CR No 23 of 2008, 15.10.08
The State v Mark Mondo Bassop (2010) N3921
The State v Nick Pinga (2010) N3852

TRIAL

This was the trial of an accused charged with unlawfully doing grievous bodily harm.

Counsel

P Kaluwin & M Pil, for the State
B Tabai, for the accused

31 May, 2011

1. CANNINGS J: Carol Peter, the accused, is charged with unlawfully doing grievous bodily harm to the complainant, Dianne Boku, contrary to Section 319 of the Criminal Code. It is agreed that an altercation between the two occurred at the Madang Timbers Compound, Madang, where they both live, on the afternoon of Wednesday 23 January 2008. The State alleges that the accused struck the complainant's face using heavy force with a wooden-handled agricultural implement, breaking one tooth. The accused admits that there was an altercation with the complainant, as a result of which the complainant lost a tooth, but said that it was a self-inflicted injury. She said that the complainant had pulled her (the accused's) hand into her mouth and bit her fingers and when she (the accused) pulled her hand out of the complainant's mouth, this caused the tooth, which was already loose due to a pre-existing injury, to come out.

EVIDENCE

2. Evidence for the State consisted of oral testimony by four witnesses and two exhibits. The first witness, Mr Leo Mabura, is Senior Dental Therapist at Modilon General Hospital. He said that the complainant came to the dental clinic on 24 January 2008, alleging that she had been assaulted with a piece of timber and a stone by a neighbour the previous day, which caused one of her upper teeth to be broken and painful. He found that two-thirds of the crown and roots of the upper right central incisor (No 21) were fractured and there were fresh soft tissue injuries. He extracted the tooth. In his opinion very strong force would have been required to cause such an injury. The nature of the injury was consistent with an object being used to cause the injury. In cross-examination he did not rule out the possibility that the injury could have been caused by a hand being pulled out of the mouth but said that the tooth would have to be already loose. The injury was more likely to have been caused by infliction of heavy force with an object.

3. The second witness was the complainant. She said that the accused became cross with her because she (the complainant) had chided a child for lying on a pawpaw tree. The accused took exception to what the complainant said to the child. They exchanged harsh words and she (the complainant) walked back to her house. The next thing she knew, the accused came at her with a wooden-handled agricultural implement (a stick-hook). The accused struck her on the face with a downward motion, causing one of her top teeth to break. This caused severe pain. Relatives of the accused also attacked her. She lost blood. One of her daughters tended to the injury and she went to the dental clinic the next day. In cross-examination she denied pulling the accused's hand into her mouth and biting it. She also denied that her tooth was already loose due to an assault by her husband in November 2007.

4. The third witness was the complainant's husband, Peter Boku. He said that he saw the accused strike his wife with a stick hook. The accused landed two blows, the first on the shoulder, the second on the face. He intervened and stopped the altercation. He denied in cross-examination assaulting his wife in November 2007 or at any time.

5. The final State witness was the complainant's daughter, Pauline Boku, a grade 6 student. She said that she was present when her mother and the accused fought. She was in the area when she heard people fighting and she raced over and then saw the accused strike her mother on the face with a stick-hook. She went to her mother's aid and washed her mouth of blood.

6. The two exhibits admitted into evidence were a medical report prepared by Mr Ambura (which was consistent with his oral testimony) and the accused's record of interview (in which she denied causing the injury to the complainant and asserted that the injury was due to the complainant being assaulted by her husband some time previously).

7. Three witnesses gave evidence for the defence. First, the accused gave sworn evidence that she had nothing in her hand when she fought with the complainant. The fight started when she (the accused) pointed her hand at the complainant and accused her of creating a lot of problems in the compound. The complainant responded by grabbing her (the accused's) hand and pushing it into her mouth. They struggled for a while, during which time her cousin, Pasi, rushed in and separated them. In the course of that she (the accused) was able to remove her right hand from the complainant's mouth. This caused one of the complainant's teeth – one that had been broken by her husband when he assaulted her in a prior incident – to be dislodged.

8. The second defence witness was George Kambing, a security guard at the Madang Timbers compound. He has worked there for more than 20 years. He is from Siassi, Morobe Province. He knows both the accused (who is from Angoram, ESP) and the complainant (who is his niece) very well. He also knows the complainant's husband, Philip (from WNB) very well. He knows that Philip beats up the complainant every now and then as she is not a good housekeeper and incurs debts by gambling. Peter had been around to his (George's) house in November 2007 to tell him that he had assaulted his wife as she had been big-heading, and injured her mouth.

9. The final defence witness was Anna Awai. Like the accused, she is from Angoram, ESP. She lives at Banana Block, close to the Madang Timbers Compound. She recalls that on the night of 28 November 2007 the complainant, who she knows very well, came and stayed at her place. She needed comforting as her husband had just beaten her up and broken one of her teeth. She did not see the fight between the accused and the complainant on 23 January 2008.

ISSUES

10. Section 319 of the Criminal Code states:

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.

11. This offence has, as explained in The State v Nick Pinga (2010) N3852, two elements:

•	doing grievous bodily harm to another person; and

•	doing it unlawfully.

12. If the State is unable to prove that the accused did grievous bodily harm to the complainant, the question becomes: did the accused assault or harm the complainant? If she did, the possibility of entering a conviction for a lesser offence must be considered. The issues therefore are:

1	Was grievous bodily harm done to the complainant?

2	If there was no grievous bodily harm, did the accused assault or harm the complainant?

3	Should the accused be convicted of an other offence?

1 	WAS GRIEVOUS BODILY HARM DONE TO THE COMPLAINANT?

13. There is a definition of "grievous bodily harm" in Section 1 of the Criminal Code. It means:

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.

14. It is not disputed that the complainant suffered "bodily injury", but was it of such a nature as to:

•	endanger life? or
•	be likely to endanger life? or
•	cause permanent injury to health? or
•	be likely to cause permanent injury to health?

15. The medical evidence was insufficient to establish any of these scenarios. No indication was given by Mr Ambura that the injury was life-threatening. Although the injury to the complainant was, in a sense, permanent in that her tooth was gone forever, Mr Ambura noted that she could get a denture to replace it, so in that sense there was no significant and permanent injury to the extent that would be necessary to conclude that grievous bodily harm was done to the complainant.

16. This element of the offence under Section 319 has not been proven, so the accused cannot be convicted as charged. It must now be determined whether the accused can be convicted of any other offence. This leads to the question of whether the essential elements of any of the alternatives have been proven.

2	DID THE ACCUSED ASSAULT OR HARM THE COMPLAINANT?

17. "Assault" is defined by Section 243(1) of the Criminal Code:

A person who—

(a)	directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or

(b)	by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

18. Did the accused assault the complainant? That is, did the accused directly strike the complainant without her consent? Should the court accept the complainant's evidence that the accused struck her in the face with a stick-hook? I have concluded that all of these questions must be answered yes. The complainant gave credible evidence of what happened and it has been corroborated by the evidence of her husband and her daughter. They are not independent witnesses but that does not mean that their evidence should be disregarded. It was credible evidence. The accused's evidence about the complainant grabbing the accused's hand and putting it in her mouth is too hard to believe. It is not supported by the medical evidence, as Mr Ambura's opinion was that the injury he observed the day after the incident was likely to have been caused by severe force with an object. There was no eyewitness evidence to contradict the direct evidence of the complainant's husband and daughter.

19. As to whether the complainant's husband assaulted her on the night of 28 November 2007, the defence has not persuaded me as the tribunal of fact that such an incident occurred. The manner in which this evidence emerged gave the impression that it was concocted. The third defence witness, in particular, gave very peculiar evidence as she seemed to have a poor sense of time and events but could somehow remember what happened on a particular night more than three years ago in November 2007. Having raised this as a defence in the sense of proposing it as the cause of a pre-existing injury it was incumbent on the defence to show that the allegation was true. This does not mean that the onus of disproving the elements of the offence ever shifted to the defence. It did not. But the defence that was put forward was not one of the excusatory defences such as self-defence or provocation (where the onus of disproving the defence shifts to the prosecution). It was simply an alternative version of events, of which the defence bore the onus of proving; and it failed to do so.

20. I should add that if I had been persuaded that the complainant's husband had assaulted her and this caused her tooth to be loose, I could have still found, and would have concluded that the accused assaulted the complainant in the manner alleged by the State in view of my acceptance of the credibility of the direct evidence of what happened in the altercation between the accused and the complainant.

21. Thus, I find it proven beyond reasonable doubt that the accused assaulted the complainant by striking her on the face with a stick-hook. I also find it proven that the effect of the assault was to cause bodily harm to the complainant. "Bodily harm" is defined by Section 1(1) of the Criminal Code to mean:

any bodily injury that interferes with health or comfort.

22. There is clear evidence that the complainant was injured and that the injury interfered substantially with her health and comfort.

3	SHOULD THE ACCUSED BE CONVICTED OF AN OFFENCE?

23. The effect of Section 542 (charge involving specific result) of the Criminal Code is that if an accused is charged with an offence under one of the provisions of Division V.4 (offences endangering life or property) and the State cannot prove all of the elements, she can be convicted of an alternative offence of a similar but less serious nature; provided, of course, that all elements of the lesser offence are proven (see R v Meauri [1969-1970] PNGLR 259; The State v Mark Mondo Bassop (2010) N3921).

24. Section 542(1) relevantly provides:

On 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 of which … a result of a similar but less injurious nature, is an element.

25. In the case of an accused charged under Section 319 the most likely lesser offences will be:

•	unlawful wounding (Section 322(1));
•	common assault (Section 335);
•	assault occasioning bodily harm (Section 340(1));
•	serious assault (Section 341).

26. In the present case an alternative conviction for the following offence is not available:

•	serious assault – as none of the other elements, eg assault with intent to commit a crime or to resist arrest exist.

27. However, an alternative conviction is available for three offences:

•	unlawful wounding;
•	common assault;
•	assault occasioning bodily harm.

Unlawful wounding

28. The offence of unlawful wounding has two elements:

•	wounding the complainant;
•	unlawfully.

29. There is sufficient evidence that the whole of the complainant's skin was severed (as required to constitute "wounding", see R v Hutchings (1972) No 710). And there is sufficient evidence that the accused acted unlawfully as there is no lawful justification or excuse for acting as she did. Therefore it would be proper to enter a conviction for unlawful wounding.

Common assault

30. This offence is created by Section 335, which states:

A person who unlawfully assaults another person is guilty of a misdemeanour.

Penalty: If no greater punishment is provided, imprisonment for a term not exceeding one year.

31. As I pointed out in The State v Buka Mapusi, CR No 23 of 2008, 15.10.08, common assault has two elements:

•	assaulting the complainant;
•	unlawfully.

32. I have already concluded that the accused assaulted the complainant. She did so unlawfully as she has provided no lawful justification or excuse for doing so. There was perhaps some evidence of the defence of prevention of repetition of insult under Section 268 but it was not raised formally as a defence and I consider that the prosecution would have been able to disprove its elements. So it does not apply. Therefore it would be proper to enter a conviction for common assault.

Assault occasioning bodily harm

33. This offence is created by Section 340(1), which states:

A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

34. It has three elements:

•	assaulting the complainant;
•	unlawfully; and
•	by doing so, doing bodily harm.

35. I have already concluded that the accused assaulted the complainant and did so unlawfully and that she inflicted bodily harm. All three elements have been proven beyond reasonable doubt. Therefore it would be proper to enter a conviction for assault occasioning bodily harm.

For which offence should a conviction be entered?

36. I have concluded that the accused could be convicted of any one of three offences. The normal practice is for the court to enter a conviction for the most serious of any available alternatives. Common assault has a maximum penalty of only one year. Unlawful wounding and assault occasioning bodily harm each carry a maximum of three years, so it is a matter of choosing between those two. Assault occasioning bodily harm is the offence which I consider best fits the description of the harm done to the complainant and the circumstances in which it was inflicted. A conviction therefore will be entered under Section 340(1).

VERDICT

37. Carol Peter is found not guilty of unlawfully doing grievous bodily harm, contrary to Section 319 of the Criminal Code, but guilty of assault occasioning bodily harm, contrary to Section 340(1) of the Criminal Code.

Verdict accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Tabai lawyers: Lawyers for the accused