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State v Kaupa [2011] PGNC 28; N4258 (21 April 2011)

N4258

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1215 OF 2010

THE STATE

V

MOSES KAUPA

Madang: Cannings J
2011: 6, 14, 18, 21 April

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 – whether accused acted unlawfully: defence of self-defence, Criminal Code, Section 269.

The accused was charged with unlawfully doing grievous bodily harm to the complainant by throwing an empty bottle at his head, injuring him. The accused admitted throwing the bottle, but did not concede that grievous bodily harm was done and further, relied on the defence of self-defence.

Held:

(1) There are two elements of the offence under Section 319: doing grievous bodily harm to another person and doing it unlawfully.

(2) The first element was not proven as there was no medical evidence and the complainant's evidence as to the nature and extent of his injury was vague.

(3) The State, however, proved that the complainant suffered "bodily harm", thus an alternative conviction for assault occasioning bodily harm was available provided that it was proven that the accused assaulted the complainant and did so unlawfully.

(4) Striking the complainant with a projectile was an assault but the State failed to disprove any element of the defence of self-defence under Section 269(1) and thus failed to prove that the accused acted unlawfully. The accused was accordingly found not guilty.

Cases cited

The following cases are cited in the judgment.

R v Meauri [1969-1970] PNGLR 259
R v Paul Maren (1971) N615
The State v Alphonse Dumui (2009) N3686
The State v Maria Agua CR No 208 of 2007, 16.07.09
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

M Pil, for the State
A Turi, for the accused

21 April, 2011

1. CANNINGS J: Moses Kaupa, the accused, is charged with unlawfully doing grievous bodily harm to the complainant, Eli Waima, contrary to Section 319 of the Criminal Code. It is agreed that an incident occurred outside a trade store in Baidal Road, Madang on the night of Saturday 2 May 2010. The State alleges that the accused, an off-duty security guard, smashed a bottle over the complainant's head, which caused severe facial injuries. The accused admits throwing a bottle in the direction of the complainant, but does not concede that grievous bodily harm was done and further, relies on the defence of self-defence to say that any harm he caused was lawful.

2. At the trial the evidence for the State consisted of oral testimony by the complainant and by the police arresting officer, Sgt Ray Ban. The only exhibit admitted into evidence was a witness statement by the complainant. For the defence, the accused gave sworn evidence, as did a security guard who was on duty at the trade store and said that he saw what happened.

3. 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.

4. 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.
  

5. If the State is unable to prove that the accused did grievous bodily harm to the complainant but can prove that he unlawfully assaulted him and caused bodily harm, an alternative conviction for the offence of unlawful assault occasioning bodily harm is, by virtue of Section 542(1) of the Criminal Code, available under Section 340(1) (R v Meauri [1969-1970] PNGLR 259, The State v Mark Mondo Bassop (2010) N3921).

6. The main issues therefore are:

1. Did the accused do grievous bodily harm to the complainant?
   
2. If he did not do grievous bodily harm, did he assault and harm him?
   
3. Did the accused act unlawfully?
   

1 DID THE ACCUSED DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?

7. The complainant gave sworn evidence that the accused was with two others when they confronted him and his nephew as they were trying to walk into the store. The accused put his hand in his (the complainant's) pocket, trying to get his wallet. The complainant pushed him away and then the accused's friends assaulted him and the accused threw an empty OP bottle (a heavy-duty glass bottle) at him with great force. The bottle smashed upon impact with his face, causing severe facial injuries and broken teeth, he said. There was no medical evidence to support this claim, however.

8. 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.

9. It is not seriously disputed that the accused caused "bodily injury" to the complainant, 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?
  

10. There was a paucity of evidence on these matters. The complainant's evidence was vague. No one else gave evidence of the injuries he suffered. There was no medical evidence (a medical report by a health extension officer at Modilon General Hospital was refused admission into evidence as the author of the report was required by the defence to be available for cross-examination but was not available). In the absence of corroboration of the complainant's evidence, the State has failed to prove that he was done grievous bodily harm. The first element of the charge under Section 319 has not been proven. Therefore the accused cannot be convicted under that provision.

2. DID THE ACCUSED ASSAULT AND HARM THE COMPLAINANT?
   

11. The accused gave sworn evidence, admitting that he did throw a bottle in the general direction of the complainant, though he does not know whether it hit him and, if it did, what damage it did. The accused said that he was by himself, and had gone to the store to buy provisions for the next morning's breakfast. As he was leaving the store, the complainant and his nephew blocked his way, bumped into him, said aggressive words to him and behaved in an aggressive manner. One of them was carrying a knife in his pocket. He had noticed that they were 'Wabags' (people from Enga Province) and, knowing – he said in evidence – their reputation for being violent people, he thought he was in trouble. He feared for his life. He saw an empty SP (beer) bottle lying on the ground so he picked it up and threw it hard towards the complainant and his nephew and then fled the scene.

12. From this evidence it can safely be concluded that the accused did throw a bottle hard in the direction of the complainant (whether it was an OP bottle or an SP bottle, it does not matter), that the bottle hit the complainant in the face (whether it smashed or splintered, it is not necessary to say at this stage) and that this caused the complainant facial injuries falling short of grievous bodily harm.

13. Does it follow that the accused "assaulted" the complainant and that he did him "bodily harm" (those being two of the elements of the offence under Section 340(1))?

14. "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.

15. The accused directly struck the complainant with a projectile (by throwing the bottle into his face) without his consent. He assaulted him.

"Bodily harm" is defined by Section 1(1) of the Criminal Code to mean:

any bodily injury that interferes with health or comfort.

16. There is clear evidence that the complainant was injured (even though the nature and extent of the injury is unclear). This would inevitably have interfered, to some extent, with his health and comfort.

17. Therefore the State has proven that the accused assaulted the complainant and that by doing so he did him bodily harm. Two of the three elements of the offence under Section 340(1) are proven. The final element is that the accused acted unlawfully.

3 DID THE ACCUSED ACT UNLAWFULLY?

18. If the accused acted in self-defence, he acted lawfully. It is a complete defence under Section 269(1) of the Criminal Code, on which the accused relies, which states:

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 an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

19. As defence counsel, Ms Turi, pointed out, the accused has given evidence in support of self-defence. Therefore the onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being that:

• first, the accused was unlawfully assaulted; and
  
• secondly, he did not provoke the assault; and
  
• thirdly, he only used such force to the assailant as was reasonably necessary to make an effectual defence against the assault; and
  
• finally, the force used was not intended to cause, and was not likely to cause, death or grievous bodily harm.
  

20. If the State cannot disprove at least one of those elements the defence of self-defence will succeed. The assault and bodily harm done to the complainant by the accused will be regarded as lawful (R v Paul Maren (1971) N615, The State v Alphonse Dumui (2009) N3686, The State v Maria Agua CR No 208 of 2007, 16.07.09).

Questions to be answered

21. I will restate the elements of the defence by posing four questions:

1. was the accused unlawfully assaulted?
   
2. did the accused not provoke the assault?
   
3. was the force he used not intended to cause, and was not likely to cause, death or grievous bodily harm?
   
4. did he only use such force to the assailant as was reasonably necessary to make an effectual defence against the assault?
   

22. The State must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate. I will address each question in turn.

1 Was the accused unlawfully assaulted?

23. The court is faced with two diametrically different versions of events. On the one hand, the complainant said that he had since about 6.00 pm been at his house drinking beer and telling stories with his nephew when they decided to walk to the store to buy cigarettes. He was assaulted by the accused and his friends as he was walking into the store. On the other hand the accused said that as he was walking out of the store, the complainant and his nephew, who were drunk, carrying bottles, staggered in towards the store and bumped into him, causing him to fall over and to drop what he had just purchased in the store. He said 'Can't you see where you're going? What sort of beer you've been drinking?' They replied in angry tones 'So what? Did you buy the beer and give it to us?' They moved a short distance away, spoke in Tok Ples with each other, stared at him and looked threatening. One of them had a knife, so he was put in fear of his life. He threw the bottle at them to make space. Then he fled.

24. Who does the court believe? There was no eyewitness corroboration of the complainant's evidence, only indirect corroboration provided by the second State witness, Sgt Ray Ban, who gave evidence about the accused being brought to Jomba Police Station by his relatives during the week after the incident. The accused, who was under threat of harm by the complainant's relatives, who also turned up at the station, admitted that he had injured the complainant, so he was locked up and charged for his own protection. Sgt Ban's evidence is of little probative value as to the question of who assaulted who. It only establishes that the accused admitted that he had struck the complainant – a fact that is largely uncontested.

25. As for the accused's version of events, corroboration was provided by the second defence witness, Jacob Epi, who said that, like the accused, he is a security guard with Kuima Security Services. He said that he was on duty at the trade store and saw what happened. His account of the incident generally matched the accused's evidence.

26. It is correct, as Mr Pil, pointed out, that there were some inconsistencies between their evidence. For example, whether the accused was carrying a plastic bag, whether he fell, whether there was a fight, whether the complainant and his nephew stared at the accused in a threatening manner, whether the complainant or his nephew was carrying a knife. However, I thought the differences in their evidence were insignificant. As Ms Turi submitted, they are explicable as the accused and Jacob Epi were viewing the incident from different positions.

27. None of the three eyewitnesses was exposed through cross-examination as obviously giving false evidence. So which way does the court decide? Bearing in mind that it is the State that bears the onus of proof (it is not up to the accused to prove his innocence) I consider that, as there is direct corroboration of the accused's evidence, and no direct corroboration of the complainant's evidence, the State has not convinced me, as the tribunal of fact, that the complainant's version of events should be accepted. Another factor weighing in my mind is the complainant's own evidence that he had been drinking beer for a few hours with his nephew. He said that they shared a 12-pack of SP. If he consumed six bottles of beer, even in a slow and measured fashion over a few hours, I take judicial notice of the fact that that is likely to be a sufficient consumption of alcohol to make a reasonable person's recollection of events suspect. On top of that, he got hit in the head with a beer bottle. He said he was knocked unconscious. He had to go to hospital for treatment. So does he remember clearly what happened? All of this makes his evidence, in the absence of corroboration, unreliable. He might be recalling the events as he remembers them but that will not usually be good enough in the case of a witness who has been consuming that amount of alcohol (The State v Mark Mondo Bassop (2010) N3921). As for the nephew who was with him, the complainant said that he was killed in a tribal fight earlier this year. With knowledge of that fact the State should perhaps have done some further investigation and brought someone who was an independent witness to the incident into court to give evidence. Be that as it may, the court can only decide a case on the evidence that is presented before it. Here there is insufficient evidence to support a critical part of the State's case.

28. I therefore answer question (1), yes: the accused was unlawfully assaulted by the complainant when he and his nephew, who were under the influence of alcohol, bumped into him and caused him to fall, thereby unlawfully striking him without his consent.

2 Did the accused not provoke the assault?

29. It could be argued that the accused provoked the assault by not being alert. He said that he saw 'two drunkards' coming towards him, so why didn't he just get out of the way?

30. The fact that he did not get out of their way, however, does not mean that he provoked the assault. The evidence does not support such a finding. The answer to question (2) is yes.

3 Was the force he used not intended to cause, and was not likely to cause, death or grievous bodily harm?

31. I accept the accused's evidence that the purpose of his throwing the bottle in the direction of the complainant and his nephew was to 'make space'. His intention was that they would duck and the diversion would allow him to escape. That plan worked except for the fact that the complainant was struck in the head. The answer to question (3) is yes.

4 Did he only use such force to the assailant as was reasonably necessary to make an effectual defence against the assault?

32. This is where the dearth of medical evidence again exposes flaws in the State's case. Because it has not been proven how serious the complainant's injuries were it is difficult to say how much force was actually used by the accused when he threw the bottle and whether that force was more than reasonably necessary. I find that he only used such force as was reasonably necessary. Question (4) is answered yes.

Conclusion re self-defence

33. The State has failed to prove that the answer to one or more of the questions is 'no'. All elements of the defence are therefore presumed proven. The defence of self-defence operates. The assault on the complainant and the bodily harm done to him are justified by law. The accused did not act unlawfully. An essential element of the offence under Section 340(1) is unproven. He cannot be found guilty of any similar offence as they all have unlawfulness as an element. He is entitled to an acquittal.

VERDICT

34. Moses Kaupa is found not guilty of unlawfully doing grievous bodily harm and not guilty of any other offence and shall be discharged from the indictment.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused