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State v Kramar [2019] PGNC 98; N7804 (12 April 2019)

N7804

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1375 OF 2016
THE STATE

V

MORRIS KRAMAR

Kokopo: Susame AJ
2019: 12, 13 14 March, 9, 12 April

CRIMINAL LAW – Offence – Intention To Cause Grievous Bodily Harm-S315 Criminal Code – Elements To Prove – Intention Is An Essential Element Requires Proving – Evidence Lacking To Intention – Guilty Verdict Returned For Offence Under S319 By Authority Of S542.

Cases Cited:

The State v Raphael Kuanande [1994] PNGLR 512
R v Meauri [1969-1970] PNGLR 254

Counsels:

Mr G Tugah, for the State
Mr N Katosingkalara, for the Accused

DECISION ON VERDICT

12 April, 2019

1. SUSAME AJ: Accused was indicted on a charge of with intent to cause grievous bodily harm contravening s. 315 (a) Criminal Code.
   
2. The entire section is reproduced below:
   

315. ACTS INTENDED TO CAUSE GRIEVOUS BODILY HARM OR PREVENT APPREHENSION.

A person who, with intent–

(a) to maim, disfigure, or disable any person; or

(b) to do some grievous bodily harm to any person; or

(c) to resist or prevent the lawful arrest or detention of any person,

does any of the following things is guilty of a crime:–

(d) unlawfully wounding or doing a grievous bodily harm to a person;

(e) unlawfully attempting to strike a person with a projectile;

(f) unlawfully causing an explosive substance to explode;

(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;

(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;

(i) puts a corrosive fluid or destructive or explosive substance in any place;

(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

3. The provision lists various situations State may frame a charge depending on the facts alleged. On the facts pleaded the allegation being pursued by the State is covered in subsections (a) & (d). Though sub-section (d) was never inserted on application that omission is not fatal and does not make the indictment bad. What is of significance is that on arraignment offender pleads to the basic facts alleged.
   

Elements to Prove

4. Elements required proving by the State are:
   
   1. Accused was the perpetrator
   2. There was intention on his part to disfigure another person
   3. He manifested that intention by some overt act
   4. Did grievous bodily harm to the person.
      
5. The facts alleged are as follows. There was a bride price ceremony on 2^nd April 2016 at Joseph’s Nungue’s block at Warangoi East New Britain Province. The ceremony was attended by the accused and his family and complainant and his family members. Accused daughter had been living in a marriage relationship with complainant’s young brother. Bride price was long due. The gathering was for payment of K6000.00 bride price that was initially set and agreed on.
   
6. Complainant spoke on behalf of his family and said they fell short of K1000.00 and could only pay sum of K5000.00. The balance will be paid at a later date. The accused and his brother did not accept that and an argument ensued. The complainant’s brother called out to the accused and his brothers saying “fucking con men”. Not happy about what was said complainant and his brother Raymond Baspi approached him and asked him why he made that statement. At that point accused and Greg Salek reacted and swung their grass knives at them which they avoided. Complainant and Raymond picked up pieces of firewood on the ground to block the knives swung at them. In the process of defending himself the complainant was cut on his right hand by the accused. Complainant was taken to the hospital and his wound was treated. He suffered a fracture on the right finger and damaged nerve resulting in the loss of function of his right hand.
   
7. No precise statutory defence was pleaded. This was a case of general denial.
   

Uncontested Facts

8. Facts that have been proven by evidence and uncontested are these. The initial bride price demand was K10, 000.00. It was reduced to K8, 000.00. Finally, it was agreed and settled at K6, 000.00 at the village court proceeding. Parties were all at the ceremony at about 2 to 3pm on 2 April 2016 for payment of the K6, 000. 00 that was set and agreed. Complainant however, offered to pay only K5, 000.00 and balance to be settled later. That irritated the accused and his brother and they refused to accept the payment. Words to the effect fucking you are con people were directed at the complainant and his brothers. They insisted on the full amount. Complainant and his brother responded and walked over to the accused who at all material time had in his possession a grass knife. Complainant did receive a cut from a knife on his right hand.
   
9. Evidence of injuries received is in the medical report (exhibit S3) dated 22 June 2016 by Doctor Wilson Pakalu, Surgical Registrar at Nonga General Hospital tendered by consent. Injuries noted was across the dorsal or back of the right hand. He sustained an open wound through his extensor tendons of his fingers and a fracture of his right ring finger DIP joint. He suffered loss of sensation on the ulna of his fingers due to damaged nerve which was considered permanent. The loss of function to his right hand was assessed to be 75% with disability assessed at 25%.
   
10. The principle fact at issue is who actually swung the knife? Basically, the defence assertion is that complainant’s brother Kenneth got the knife off the accused. He was going to attack accused with it directly in front. That precise moment complainant came from Kenneth’s back armed with a piece of wood to attack the accused. Both of them swung at the accused same time and the knife Kenneth swung accidently cut the complainant’s hand.
    
11. Prosecutions version is to the contrary. Raymond had slipped and fell on the ground. Accused went to attack him armed with a knife. Seeing that complainant rushed over to defend Raymond. The knife accused swung cut through the piece of wood the complainant had raised in defence of Raymond. The knife cut the complainant’s hand.
    
12. Generally, the law places no obligation on an accused to proving his innocence in a criminal case. The onus rests with the prosecution to proving guilty. Has the prosecution convincingly discharged that burden of prove?
    

Evidence

13. State relies on evidence from 3 witnesses, Patrick Baspi, his brother Raymond Baspi and Selma Alus Baspi, Raymond’s wife as well as documentary evidence tendered by consent. Defence on the other hand relies on evidence from the accused and his daughter Medline Morris and his brother Greg Salek.
    
14. Arguments advanced by the parties were on reliability of evidence, inconsistencies of evidence the demeanour and credibility of witnesses. The arguments have been considered.
    
15. After careful examination of the evidence these are the findings of the court.
    
16. First of all, accused all along during the ceremony had in his possession a grass knife. Under the circumstances such implement which is considered dangerous should not have been taken to the ceremony. It is accepted that grass knives or knives are working tools. They are freely carried around in villages or blocks. But under no circumstances such dangerous implements should be taken or brought during settlement of conflicts, or customary gatherings such as payment of compensation or bride price ceremonies where they may be disagreements. Tempers may flare and confrontation may ensue. Hence temptation to use weapons or working tools as fighting weapons becomes inevitable. Accused and his brother Greg had no lawful or reasonable excuse to have attended the ceremony with a dangerous tool such as the grass knife. No one on both sides or the master of ceremony (if any) ensured that all weapons or dangerous working tools like knives and grass knives were removed or put away prior to or at the commencement of the ceremony.
    
17. Secondly, payment of bride price was long overdue. The initial demand was K10, 000.00, then lowered to K8, 000.00. It was finally agreed and settled at K6, 000.00. The husband’s family kept putting it off despite their undertakings. Accused agreed when it was suggested to him during cross-examination that he was quite angry and disappointed over the delay because his daughter became pregnant in 2012 when she was doing her year 12.
    
18. When complainant announced that only K5, 000.00 was going to be paid and asked for an extension for settlement of the balance accused was furious. To show his anger he shoved his grass knife into the turf and refused to accept the amount and demanded additional K3, 000.00 to be paid without any further delay. He admitted that under cross-examination. His brother who was also disappointed called out saying words to the effect you are con people. That utterance was confirmed by the state witnesses. It is quite apparent that the lesser payment offered to the disappointment of the accused and his family followed by insulting utterance by the brother who provoked the confrontation between the parties.
    
19. Thirdly, It was asserted by accused complainant and his brothers had been drinking the whole night and discussions were had they will put up a fight if payment was not accepted by the accused and his family. That there was pre-planning for complainant and his brothers to put up a fight with them. Court had no problem to reject such evidence. In Evidence law these are inadmissible hearsay evidence.
    
20. Fourthly, at the ceremony, as it is the normal practice in PNG, bride or husband and his family would gather on one side while the groom and her family would be on the other side. When the brother of the accused made the insulting utterance complainant and his brother Raymond felt offended. They left the spot where they had been standing and walked over to the accused and Greg to question why Greg had called them con people. Both accused and Greg were holding their grass knives then. They had admitted to that fact.
    
21. Next, accused and Greg denied threatening Patrick and his other brothers with knives at any time during the brawl, giving the impression they did nothing and were just at the receiving end. This is quite intriguing. Any ordinary Papua New Guinea villager in their position would have resorted to some defensive act against an attack by the opposing side.
    
22. The truth is that accused and is brother were disappointed and angry when their bride price expectations were not met. Greg had uttered insults at Patrick and his family. Patrick and Raymond walked over to them to enquire about the insults. Accused and Greg perceiving that they were coming at them for a fight reacted by swinging their knives and threatening them.
    
23. Furthermore, State witnesses gave a more realistic scenario in their evidence. I could easily follow their version of what transpired. On the other hand version of facts from defence witnesses are convoluted and not easy to follow. It was difficult to work out by logic and reason how the grass knife would have cut the complainant from the versions of facts defence witnesses came up with.
    
24. I have observed the demeanour of all the witnesses. Complainant and her daughter were smiling when they gave their testimonies for no reason at all. Greg was an unreliable witness. As he gave false denials which also weighs him. I find the facts were distorted by the defence witnesses to make up a case and shift blame on Kenneth.
    
25. Court however, finds that Kenneth did grab hold of the accused and removed the grass knife from him. That was when he saw accused and cut the complainant and complainant holding his hand in pain. He ducked in at the accused and grabbed hold of him and removed the knife at the same time saying it is time you will die.
    
26. In summary elements of the charge prosecution has proven are:
    
    • Accused was the perpetrator.
    • He used a grass knife to attack the complainant.
    • Injury sustained was grievous leaving the complainant with permanent injury to his right hand.
      
27. The only element remaining to determine is on intention. Whether the accused had a prerequisite intention to disfigure or disable or do grievous bodily harm to the complainant. Intention relates to the state of mind of the accused person at the time he acted.
    
28. “It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constitution the offence.”(Injia AJ (as he then was in The State v Raphael Kuanande [1994] PNGLR 512 at page 514,).
    
29. That in essence is the test applicable to proving intention if it is one of the essential elements of an offence as is in this case. I adopt the test.
    
30. Evidence is lacking from the State accused had made expressions of intention to injure or attack the complainant prior to attending the ceremony. Again evidence is lacking from the state during the brawl or immediately before the fight started accused made no expressions either direct or implied that he was going to attack and injure the complainant with the grass knife. Accused going to cut Raymond who had tripped and fell on the ground. Complainant came over Raymond to defend him just as the accused swung the knife.
    
31. Complainant saw that and raised up the piece of wood to disturb or block the knife. The knife which was intended for Raymond cut through the piece of wood and cut complainant on the back of his right hand. In that respect I consider there was no intention on the part of the accused to cause grievous bodily harm to the complainant. Therefore, Accused shall have the benefit of doubt.
    
32. Counsel representing the State had submitted an alternate charge is available under s 319 for grievous bodily harm if evidence falls short of proving the charge under s 315.
    
33. Section 542 reads:
    

542. CHARGE INVOLVING SPECIFIC RESULT.

(1) 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 an intent to cause that result, or a result of a similar but less injurious nature, is an element.

(2) On 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 that is established by the evidence and of which the unlawful causing of that result is an element.

34. In preferring charges on facts it is a good practice to state all possible counts in an indictment rather than leaving it open as was in the case. That said though, section 542 is the authority on point submitted by Mr Tugah. On a charge under s 315 a person can be convicted for offence provided in s 319 on the established evidence. (R v Meauri [1969-1970] PNGLR 254 at 259)
    
35. Based on the facts proven convincingly established the charge of grievous bodily harm under s 319. Court returns a guilty verdict for offence of grievous bodily harm.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused