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State v Monde [2020] PGNC 378; N8631 (7 September 2020)

N8631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1111 OF 2017
CR No. 1112 OF 2017
CR No. 1113 OF 2017

THE STATE

-v-

WESLEY MONDE, GEORGINA RAVU
AND KAISY KALAMANA

Waigani: Koeget, J
2020: 27^th July, 03^rd, 04^th, 07^th September

CRIMINAL LAW- Indictable offence – With intent unlawfully caused Grievous Bodily Harm under section 315 of the code – convicted of the offence after a trial – promise to keep peace and be on Good Behaviour Bond for a fixed period of time – sentences wholly suspended

Counsel:

B. Popeu, for the Accuseds.
R. Galama & Ms G. Gunson, for the State

TRIAL

7^th September, 2020

1. KOEGET, J: The accuseds are charged With Intent Unlawfully to cause Grievous Bodily Harm to Nathan Bani pursuant to section 315 of the Criminal Code Act chapter 262. The alternative charge laid is Causing Grievous Bodily Harm pursuant to section 319 of the Criminal Code Act.

FACT

2. The complainant Nathan Bani drank alcohol from 18^th of September to 19^th September, 2015. On the afternoon of 19^th September 2015 between six o’clock and half past seven he walked to his mother’s house at Gordons Estate. As he went near the residence of the accuseds Georgina Ravu and Kaisy Kalamana, he stood and swore. So, the accused Georgina Ravu went outside of the gate to her residence and confronted Nathan Bani and both argued. She slapped him in the face and hit him on the back with a piece of timber.

3. The complainant fell to the ground and as he stood up, the accused Kaisy Kalamana lifted him up and spear tackled him, head down first on the bitumen (“coal tar”) surface of the street. The complainant’s family attended to him and took him to their family residence located next door.

4. The State further alleged that the accused Kaisy Kalaman contacted Wesley Monde and he arrived in a taxi in company of two other persons. They rushed to the complainant’s family residence gate, broke open the lock to the gate and went into the residence and proceeded to punch and kick the complainant with boots as he laid on the lawn in the family residence. The complainant laid unconscious on the grass when the family, with assistance from the neighbours transported him to the Port Moresby General Hospital and was admitted to the Emergency ward and later was transferred to the Intensive Care Unit (I.C.U).

5. The Port Moresby General Hospital medical staff placed a neck brace on his neck due to spinal fracture sustained in the assault. He was in the hospital for six weeks and discharged after recovery.

6. The State alleges that when the accuseds assaulted the complainant, all intended to unlawfully cause him grievous bodily harm and their actions contravened section 315 of the Criminal Code Act chapter 262. The accuseds acted in concert so the State invoked section 7 (1) (a) (c) of the Code.

7. The accuseds pleaded not guilty to the charge so a trial commenced to determine the allegations. At the commencement of the trial, the State tendered into evidence the following documents with consent:

- Record of interview of Wesley Monde dated 21^st November 2015, marked as “exhibit A” for the State.

- English translation dated 21^st November 2015 as “exhibit A2” for the State.

- Record of interview of Georgina Ravu in pidgin language dated 21^st November 2015, marked as “exhibit B1” for the State.
- English translation dated 21^st November 2015 as “exhibit B2” for the State.
- Record of interview of Kaisy Kalamana dated 21^st November 2015, marked as “exhibit C1” for the State.

- English translation dated 21^st November 2015 as “exhibit C2” for the State.

Evidence for the State

Witness 1: Nathan Bani

8. He is of mixed parentage of Western, Madang and East Sepik Provinces. He resides with his mother at the family residence located at section 103 allotment 29, Gordons 5 in the National Capital District. He had resided there for over twenty-two years. In 2015, he lived with his family members in the same house.

9. He commenced consuming alcohol on 18^th September 2015 and continued on the following day. On the 19^th of September 2015, he continued drinking alcohol at 10 o’clock in the morning with Michael Gigmai, Christopher Robert and Effty, a cousin brother of the accused Georgina Ravu. He knew that Effty was from Aroma and resided with Georgina Ravu and her husband Kaisy Kalamana. He knew him for over five (5) years. They drank 12 packs white SP cans and two full bottles of Captain Moresby and in the course of the consumption of the alcohol, Effty caused nuisance so Christopher Robert escorted him to the house he resided. He continued to consume alcohol with Michael Gigmai and finished drinking alcohol by half past seven (7:30pm) so both dispersed and went to their respective houses.

10. He walked along the street and stood six meters away facing the direction of the house belonging to Georgina Ravu and Kaisy Kalamana because Effty resides there and began swearing at him.

11. It was dark then and he did not see anyone, not even a child. As he stood on the street, Georgina Ravu came outside of the gate to her house and confronted him. They argued and he said to her: “I did not swear at your child but your brother Effty”.
12. Both pushed and shoved each other on the street when Kaisy Kalamana came out of his house and said: “Nathan you swore at our child aged one year and eleven months old”. They continued to push and shove each other on the street and because he was very drunk, was off balance and fell down. That is when Kaisy Kalamana lifted him up and Georgina Ravu took a piece of timber and hit him on the back and neck.

13. Then Kaisy Kalamana spear tackled him, head down first onto the bitumen (“coal tar”) surface of the street. He laid unconscious and gained consciousness at the Port Moresby General Hospital when admitted into the hospital ward.

14. During cross-examination he stated that although it was dark, he knew what happened on 19^th September 2015. He did not see Georgina Ravu’s child at the gate because it was dark. When he swore at Effty, he said: “Kai kai kan, ass kan, arse hole, kan face, I will fight with you.” He admitted that as he and Georgina Ravu pushed and shoved each other on the street, the latter’s blouse was torn.

15. The timber used by Georgina Ravu to hit him was four meters long. He identified Georgina Ravu, Kaisy Kalamana seated in the dock.

Witness 2: Ruthy Bani

16. She is from the Western Province and is married and Nathan Bani is the only child she has. She adopted another child from relatives. She resides in a house located along Sand Piper Street, section 103, allotment 29, Gordons Estate in the National Capital District. She is employed at the Treasury office at Waigani.

17. On the afternoon of 19^th September 2015, she returned to the house after a church service and between six o’clock and half past seven she heard a commotion outside on the street so she went outside of the house. She heard her niece calling “mother, mother, they are assaulting Nathan”. So she went to the street and saw Georgina Ravu push Nathan and he was off balance and fell down. As he stood up she saw Georgina Ravu hit Nathan on the back with a timber. Then Georgina Ravu’s husband Kaisy Kalamana came outside of the premises, lifted Nathan and spear tackled him, head down first onto the bitumen surface of the street. She saw Nathan Bani lay unconscious on the ground. She heard Georgina Ravu said: “Emmanuel’s uncle will come and you will get it.”

18. Nathan Bani did not get up nor move so her older sisters and a nephew assisted Nathan into the premises. She stood up and watched Kaisy Kalamana ring Wesley Monde. She saw the family members lay Nathan on the lawn in the premises when Wesley Monde in company of two other persons arrived in a vehicle parked in front of their gate. He shouted “Nathan you come out” and Nathan swore him so he became very angry and ran to the gate and pushed it hard and the lock fell down. Then Wesley Monde in company of the two men ran into the premises and began kicking him with boots all over his body as he lay on the grass in the premises.

19. The family members shouted “enough, enough, you broke the lock at the gate and came into the premises”.

20. They went outside and Wesley Monde said “Nathan I do not want to see you here. I will put bullet through your head. I am a murderer; I will go to Bomana for seven years. We will take every occupant of your house one by one”.

21. One of the men threw a full can of beer into the premises and missed two infants and said “put him into the boot of the vehicle. We will take him in the bush”. They shouted, swore and drove away.

22. The next neighbour assisted in transporting Nathan to the hospital and was admitted. The accused visited Nathan at the hospital ward and offered K50-00 each visit. Further visits were stopped by her when she saw Nathan’s condition in hospital worsen. He has recovered and was discharged from the hospital after six weeks.

23. In cross-examination she stated as she went outside the house, stood and watched, she heard Nathan said to Georgina Ravu, “I did not swear your child. I swore your cousin brother Effty”. She also heard Nathan say when in the premises “fuck your mother”.

Evidence for Defence

24. The accuseds remain mute and did not give oral evidence in rebuttal of the State’s allegations. So, the State’s allegations against the accuseds are intact.

Undisputed facts in the trial

- The complainant Nathan Bani consumed alcohol from 18^th September 2015 to 19^th September 2015 so he was very drunk on the afternoon of 19^th September 2015.

- On 19^th September 2015, he consumed alcohol with Michael Gigmai, Christopher Robert and Effty.

- On the evening of 19^th September 2015, Nathan was very drunk so stood on the road about six meters from the gate to Georgina Ravu and Kaisy Kalamana’s residence at Gordons and swore.

- Georgina Ravu came outside of her residence and confronted Nathan Bani. Both argued, pushed and shoved each other and Georgina Ravu hit Nathan Bani with a piece of timber on the back and the neck.

- Georgina Ravu’s husband Kaisy Kalamana came out of the premises to assist wife in the assault of Nathan Bani. He lifted Nathan Bani in the air and spear tackled him head down first resulting in Nathan Bani’s head hitting the bitumen surface of the street. (“coal tar”).

- Nathan Bani laid unconscious on the ground until family members assisted him into the family residence. He laid on the lawn in the family premises.

- Kaisy Kalamana contacted Wesley Monde by phone and the latter drove into the premises in a vehicle with two other men.

- Wesley Monde and the two men pushed hard the gate and the lock fell down so the three men ran into the premises and kicked Nathan Bani as he laid on the grass in the premises.

- Nathan Bani was taken to Port Moresby General Hospital and admitted to the Intensive Care Unit (“I.C.U”). The accuseds visited him twice and offered K50-00 on each visit. Further visits were stopped by the mother when his health conditions worsen then. He was at the ICU ward for six weeks and when he recovered, was discharged from the ward.

Disputed evidence in the trial

- What words were spoken by Nathan Bani and to whom were they directed?

- Did these words provoke feelings of Georgina Ravu?

- Was Georgina Ravu provoked when she confronted Nathan Bani?

- Did Kaisy Kalamana aid Georgina Ravu when she said she was provoked?

- Why did Wesley Monde assault Nathan Bani when he did not wrong to him?

Analysis of the evidence in the trial

25. The complainant Nathan Bani drank alcohol from 18^th September 2015 to 19^th September 2015. On 19^th September 2015, he drank from 10 o’clock in the morning till six o’clock in the afternoon. He drank alcohol with Michael Gigmai, Christopher Robert and Effty, a cousin brother of the accused Georgina Ravu. Effty reside in the house belonging to Georgina Ravu and Kaisy Kalamana. He made nuisance and so Christopher Robert escorted him to his house.

26. The complainant Nathan Bani walked to his mother’s house and when he was about six meters from the gate to Georgina Ravu and Kaisy Kalamana’s house he stopped and began swearing at Effty. He said it was dark he did not see anyone not even a child at the gate to Georgina Ravu and Kaisy Kalamana’s house.

27. The accused Georgina Ravu came outside of her premises as she was angry and confronted him. In the process of pushing and shoving, Georgina Ravu’s blouse was torn. She picked up a piece of timber and hit him on the back then Kaisy Kalamana came outside of his premises to assist his wife. He lifted Nathan Bani and spear tackled him, head down first onto the bitumen surface of the street. This account is corroborated by the evidence of Ruthy Bani. The complainant Nathan Bani stated he swore at Effty and not Georgina Ravu or her infant son. He said to Georgina Ravu, “I did not swear your son, but your cousin brother Effty.” This account is supported by the account of Ruty Bani. She stated she heard Nathan Bani said “I did not swear your son but your cousin brother Effty.”

ISSUE

28. What words were spoken by the complainant Nathan Bani that provoked Georgina Ravu so she came outside of her premises and confront him?

29. The accusseds Georgina Ravu and Kaisy Kalamana opted to remain silent or mute. They relied on their answers in their respective records of interviews with the police tendered by the State. The relevant extracts area as follows:

Georgina Ravu

“Quest 9: I will ask you questions in regard to the incident you are detained by the police. According to statement from four witnesses who witnessed the incident said that you said Nathan swore at your little son Emmanuel and you came and pushed him and he fell and you hit him with a piece of timber. Your husband came and lifted him and speared his head towards the ground, what would you say to this?

Ans: Yes, its true. What timber they are referring, to me wasn’t a big timber, it was a small one. My husband told him to go to his house and his uncles pulled him into the house but he ran out and threw a punch at my husband and my husband held him around his belly and threw him to the ground”.

“Quest 11: According to the witnesses statements and the medical report, I am now arresting and charging you with Grievous Bodily Harm section 319 of the PNG Criminal Code Act chapter 262 for your involvement in hitting Nathan Bani causing severe injuries to him. You do not have to say anything unless you wish to but anything you say will be typed down and tendered in court as evidence against you, do you understand this?

Ans: Yes, I understand and I have something to say. I would not have assaulted him without reason. He came to the front gate and swore my little boy aged one year eleven months and abused him. I came out of a family where my parents do not swear at me or inside the house. I do not swear at my kinds. We have not grudges against him. That’s why I hit him”.

Kaisy Kalamana

“Quest : I will now ask you questions in regard ................................... what do you say to this?

Ans: Yes, after my wife hit him with a piece of timber, I came and I ask him why he came into my yard and swore at my little son. He was denying it and he swung his hand first towards me but I avoided it and the second time he swung, I lifted him and dumped him towards the ground. Its normal that once they are drunk, they usually say the street is theirs and they do anything.

“Quest 14: Do you have anything more to say?

Ans: The reason we hit him was because he swore at my little son who is one year and eleven months old. If he did not swear, I would not swear, I would not have hit him and we would not have ended up at the hospital. In my house, I do not swear my children and do not teach them as well”.

30. Both accuseds raised the Defence of Provocation pursuant to section 267 of the Criminal Code Act chapter 262 in their respective records of interview.

31. The complainant Nathan Bani stated he swore at Effty, the cousin brother of Georgina Ravu. He resides in the house belonging to Georgina Ravu and Kaisy Kalamana. It was dark he did not see anyone under the house, not even a child at the front gate. I pose this question: “what was the infant child doing at the front gate of the parent’s house unattended late in the evening? Such account is incredible and unbelievable because it implies that both are incapable of caring for their infant child. I believe that both are loving parents and care for their child. So, I find that the child was not at the front gate to their house. The child was in the safe custody of the accuseds in the family home.

32. The testimony of Nathan Bani was tested in cross-examination and was not discredited. In fact, Ruthy Bani’s evidence supports the evidence of the complainant. So, I find that the complainant did not swear at Emmanuel but he swore at Effty, the cousin brother of Georgina Ravu. So, the defence of provocation under section 267 of the Code is not available to them.

33. The accused Wesley Monde was not involved in the first confrontation between Georgina Ravu, Kaisy Kalamana and the complainant Nathan Bani. He arrived after the assault on the complainant by Georgina Ravu and Kaisy Kalamana. The complainant laid unconscious on the grass in the premises of the family house. The accused Wesley Monde was contacted on mobile phone by Kaisy Kalamana and he proceeded on arrival to the premises to push open the gate and assaulted Nathan Bani in company of two other persons. He had no reason to assault the complainant because he had done no wrong to him at all. So, the defences of self defence or provocation are inapplicable to him.

34. The medical report shows the complainant Nathan Bani suffered life threatening injury; fortunately he recovered and is discharged from hospital.

VERDICT

35. The State proved its case against each accuseds beyond reasonable doubt so the accuseds are found guilty as charged.

ISSUE

36. The issue for the court to determine is what is the appropriate sentence the court should impose upon each of the prisoners.

LAW

“Section 315. Act 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; or
(e) unlawfully attempting to strike a person with a projectile; or
(f) unlawfully causing an explosive substance to explode; or
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person; or
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person ; or
(i) puts a corrosive fluid or destructive or explosive substance in any place; or
(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.”

Personal Particulars

Georgina Ravu

37. She is 29 years of age and is married with four children. The ages of the children range from fours years to 16 years. All the children reside with her in the family house.

38. She attended Kupiano High school and completed grade 10 and in 2014 she attended FODE and obtained a certificate in computing at Institute of Business Studies (I.B.S). She is a housewife at present.

Kaisy Kalamana

39. He is 43 years old and is from Duke of York Island. He completed grade 6 at Kabian community school, Duke of York Island in 1991.

40. He attended Milmila Vocational Training centre and completed carpentry.

41. He is employed as a carpentry supervisor by SDA Central Papua Conference in Port Moresby. He is married to Georgina Ravu and both have four children.

Wesley Monde

42. He is 46 years of age and is married with five children. He attended Kabina Community school and completed grade 6 in 1988. He proceeded to attend Vunamami Vocational Training Centre from 1992 – 1994 and obtained Certificate in Mechanical engineering. He is employed by UPNG Medical Faculty as an administration driver.

AGGRAVITING FACTORS

43. The complainant sustained serious life threatening injuries. Such offence is still prevalent in the country.

MITIGATING FACTORS

Georgina Ravu

44. She is a first-time offender. She co-operated with the police when she admitted commission of the offence. She is remorseful and apologise to the complainant and the family. She visited the complainant in hospital on two occasions and offered cash of K50.00 each visit.

45. She felt offended when she heard the complainant swearing near the house at her cousin brother. She did not use weapon in the commission of the offence.

Kaisy Kalamana

46. He is a first-time offender. He cooperated well when he made admission in the record of interview. He was remorseful and visited the complainant at the hospital with his wife and Wesley Monde.

47. The complainant instigated the incident leading to the assault as he was swearing near their house so felt offended. He went to assist his wife when she confronted the complainant.

Wesley Monde

48. He has a prior conviction on the charge of manslaughter. He was convicted by the National Court in Waigani in 2002 and he served the sentence and released from prison in 2004. Since the release in 2004 till 2015, he did not commit any crime. He concentrated in the welfare of his family. In this case, he may have been influenced by Kaisy Kalamana to assist in the assault of the complainant.

49. All prisoners were remanded in custody for a day before released on cash bail of K500.00 each.

SENTENCE

50. The complainant instigated the incident when he got sufficiently intoxicated after consuming alcohol for two consecutive days. He ought to have known that to shout such abusive, insulting language to a dwelling house would attract someone to come out to offer a confrontation as in this case.

51. His conduct is viewed as stupid and in the end he was at the receiving end. So he bears same blame for his actions.

52. Nevertheless, the prisoners’ actions amount to over re-action to insignificant insults and consequently the complainant sustained life threatening injury. There was no need for the prisoner Kaisy Kalamana to lift and spear tackle the complainant to the hard surface of the street. Fortunately, the complainant did not suffer spinal or head injury.

53. He has recovered and is well. The prisoners are remorseful and regret what each of them did to the complainant were foolish acts. Should they be imprisoned, there will be no one to care for the young children. These factors are accepted by the court and so in the circumstances of the case, an imposition of a lenient custodial sentence will be justified.

54. So the prisoners are sentenced to be imprisoned for a period of three years in hard labour. The prisoner’s sentences are wholly suspended upon each of them promising to enter into recognisance and be of Good Behaviour Bond for three years.

55. Should the prisoners breach the promise, each of them shall be imprisoned for 3 years in hard labour.

ORDER

1. Should the prisoners breach the promise, each shall be imprison for 3 years in hard labour.
   
2. The bail of K500.00 is to be refunded to each prisoner.
   

Accordingly ordered.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused