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State v Liu [2021] PGNC 492; N9284 (15 November 2021)

N9284

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 796 OF 2020

STATE

V

JOHN LIU

Waigani: Wawun-Kuvi, AJ
2021: 15^th October, 12^th &15^th November

CRIMINAL LAW-TRIAL-Grievous Bodily Harm, section 319-Whether accused acted in self defence? Whether injury was grievous in nature?

CRIMINAL LAW-PRACTICE AND PROCEDURE-Whether there are alternative charges available for the charge of unlawfully causing grievous bodily under section 319?

The accused was charged with causing grievous bodily harm under Section 319 of the Criminal Code. The complainant was struck on the mouth by the accused. As a result, the complainant bled from the mouth. The accused states that he struck the complainant in self defence. He further contends that the State did not prove the element of grievous bodily harm.

Held

1. The onus is on the prosecution to prove its case beyond reasonable doubt and to negate any defences fairly raised.
   
2. The defence of self-defense is made out if the accused demonstrates that he used such force in the defence of himself as was reasonable in the circumstances as he believed them to be: see State v Paru (No 2 of 2021) [2021] PGNC 254; N9109 (2 September 2021) at 31 and Tapea Kwapena v The State [1978] PNGLR 316 at 319.
   
3. The accused had maintained in his ROI and evidence that the complainant grabbed him by the collar, spun him around, held him tightly and punched him on his head twice and once on his jaw. That he knew the complainant to be short tempered in nature and coupled with him being a sick person, he defended himself against the assault. He struck the complainant only once to free himself from the complainant’s hold.
   
4. The State failed to negate the defence of self defence.
   
5. As there was no medical report and evidence from the Complainant, the State failed to demonstrate that the complainant’s injury was grievous in nature.
   
6. There are alternatives to grievous bodily harm pursuant to section 542(1) of the Criminal Code, State v Peter [2011] PGNC 131; N4299 (31 May 2011) and State v Kaupa [2011] PGNC 28; N4258 (21 April 2011)
   
7. As the State did not negate the defence of self defence, a verdict of not guilty is returned.
   

Cases Cited

State v Paru (No 2 of 2021) [2021] PGNC 254; N9109
State v Peter [2011] PGNC 131; N4299
State v Kaupa [2011] PGNC 28; N4258
State v Bassop [2010] PGNC 169; N3921
Cosmas Kutau Kitawal and Christopher Katau v the State (2007) SC927
Pah, The State v [1985] PNGLR 188
Tapea Kwapena v The State [1978] PNGLR 316
Reg v Polhill [1973] PGSC 71
R v Meauri [1969-70] PGLawRp 254
Regina v Bawai [1965-66] PGLawRp 210

Reference

Criminal Code (Ch 262)

Counsel

Ms G Gunson, for the State
Mr I Pailea and Mr B Popeu, for the Defence

15^th November, 2021

VERDICT

15^th November, 2021

1. WAWUN-KUVI, AJ: John Liu (accused) is indicted that on 31 October 2019 at Waigani in National Capital District, he unlawfully did grievous bodily harm to one Libe Dennis (complainant), thereby contravening section 319 of the Criminal Code (Ch 262). To this charge the accused pleaded not guilty.
   
2. The accused does not deny that he punched the complainant. He accepts that the punch caused the complainant to bleed from the mouth. He challenges the factual events and says that his actions were done out of self defence.
   
3. The prosecution tendered both the Pidgin and English versions of the Record of Interview exhibited as “A” and “B” and called only one witness.
   
4. The accused and the complainant are brothers in the customary sense. Their fathers are brothers. They are from Angyano Village, Komo Magariam in Hela Province. Prior to the alleged offence, a family dispute arose over the estate of the accused elder brother. The accused and two other relatives believed that there was fraud committed over the deceased estate. They reported the matter to police. Wape Liu, the deceased son was arrested. Those allegations were before the Committal Court. The complainant was said to have sided with Wape Liu.
   

Allegations

5. On 31 October 2020, the accused and the complainant were at the Committal Court at Waigani.
   
6. The State alleges that the complainant parked his vehicle and as he was exiting, he heard someone asking him his reasons for being there. He turned and saw that it was the accused. As the accused walked towards the complainant, the complainant informed him that he had a right to go anywhere he wished. The accused then punched the complainant twice on his mouth. This resulted in the complainant losing two of his lower front teeth. The State says that the complainant did not retaliate but instead went with the accused to the police station, where the accused was charged.
   

Burden of Proof

7. The onus is on the prosecution to prove its case beyond reasonable doubt and to negate any defences properly raised beyond reasonable doubt, see Cosmas Kutau Kitawal and Christopher Katau v the State (2007) SC927.
   

State’s evidence

8. The State called one Ali Mario Tepi. The witness is a police Detective attached with the Criminal Investigation Division, Armed Robbery Squad. He observed the altercation between the complainant and accused. He was seated in a police vehicle registration ZPD 752. He parked about 5 meters from the altercation. He was with his colleague Detective Robin Slim. They were parked at the far end of the committal court carpark. They were reverse parked. The back of the vehicle was toward the boundary fence of the Committal Court and the National and Supreme Court. The front of the vehicle was facing the Committal Court footpath. He was seated in the driver’s seat when he saw the accused punch the complainant once in the mouth. The complainant fell. He and his colleague then went and stopped the fight. They took both men to the Gordon’s police station, where he obtained the complainant’ s statement. The accused was detained in the holding cells.
   
9. The police interview reduced into the Record of Interview was conducted the day after the incident. The accused maintained the same version in his Record of Interview when he gave sworn evidence. He says that he was at the Committal Court when the complainant approached him to withdraw the case. Stating that they should settle the case outside of court. He then informed the complainant that he would not withdraw the case because it would result in loss of lives. This agitated the complainant who then pulled him by the shirt. They argued. There was a struggle. The complainant grabbed him, spun his round, and pulled him towards him. Held him against his chest. He has his back on the complainant’s chest as they both faced the same direction. The complainant held him tight and punched him twice in the head and once on the chin. They struggled towards the open carpark between two vehicles. He broke free by punching the complainant in the mouth once. The complainant started to bleed. He then ran towards the parked police vehicle. The policemen took them both in.
   

Findings of Fact

10. I accept the accused version of events for the following reasons:
    
    • 10.1. The complainant did not give evidence.
    • 10.2. The State did not tender a medical report.
    • 10.3. The police interview which was reduced into the ROI was obtained on 1 November 2019. The day after the alleged offence. The accused maintained the same version of events and his evidence was not shaken in cross-examination.
    • 10.4. Detective Tepi like the accused states that there was only once punch. The State alleged that there were two punches.
    • 10.5. Detective Tepi like the accused states that the altercation started from the footpath leading to the carpark. Contrary to the State’s allegation that it was when the complainant stepped out of his car.
    • 10.6. Whilst Detective Tepi states that he saw the altercation from the start, I find that he only witnessed the end of the altercation. This is because:
    • 10.6.1. The Accused says that they struggled from the footpath and went between two vehicles. It was when they moved to the middle of the carpark that he broke free from the complainant’s hold by striking him. He then ran to the police vehicle. Detective Tepi’s evidence was limited to the altercation and not the surroundings. The only evidence that there were two vehicles is from the accused. This was not challenged and so I accept that there were two vehicle obstructing Detective Tepi view;
    • 10.6.2. Detective Tepi says that he observed the altercation from 5 meters away. It is contrary to common sense and logic, to form a view that that the witness had his eyes always fixed on the footpath. Especially when he states that the altercation started on the footpath then led to the carpark. It is far more reasonable that he observed the altercation as it grew louder, drew more attention, and occurred in front of his police vehicle;
    • 10.6.3. It is inconsistent with logic and common sense that that the accused would punch the complainant at the Committal Court witnessed by police officers for no other reason other than that he was upset at the presence of the complainant. The accused’s evidence is more consistent with logic and common sense, in that there was an exchange of heated words that sparked a physical struggle.
      
11. Having accepted the accused version, I am now to decide, whether the accused acted in self defence.
    
12. The Record of Interview and the facts as I have accepted them, establish that the complainant was the aggressor and that the accused did not provoke the assault on him.
    

Whether the accused acted in self defence?

13. Section 269 (1) of the Code makes it lawful to use such force as is necessary to make an effectual defence against an unprovoked assault, as long as the force used is not intended or likely to cause death or grievous bodily harm.
    
14. However, if the extent of the assault is such that it causes the accused to have a reasonable apprehension that death or grievously bodily harm will be caused, and that he believes on reasonable grounds that he cannot preserve the complainant from death or grievous bodily harm, it is lawful for the accused to use such force as is necessary even though it may result in death or grievous bodily harm.
    
15. The defence is made out if the accused demonstrates that he used such force in the defence of himself as was reasonable in the circumstances as he believed them to be: see State v Paru (No 2 of 2021) [2021] PGNC 254; N9109 (2 September 2021) at 31 and Tapea Kwapena v The State [1978] PNGLR 316 at 319.
    
16. In the present case, the accused had maintained in his ROI and evidence that the complainant grabbed him by the collar, spun him around, held him tightly and punched him on his head twice and once on his jaw. That he knew the complainant to be short tempered in nature and coupled with him being a sick person, he defended himself against the assault. He struck the complainant once to free himself from the complainant’s hold.
    
17. The State did not negate this aspect of the evidence. Whilst the State called Detective Tepi, as I had found, Detective Tepi only witnessed the end of the altercation.
    
18. I am therefore satisfied that the accused was of the belief that had he not punched the complainant, he would have received grievous bodily harm. Furthermore, his actions of striking the complainant once in the mouth was not likely to cause death of grievous bodily harm.
    

Whether the accused caused grievous bodily harm?

19. There was no medical report and nothing to disprove the accused evidence that the complainant’s teeth was lost years before in a car accident.
    
20. There is also very little if any at all in the State’s case that demonstrates that grievous bodily harm was caused.
    
21. Before concluding, I address defence counsel’s submission that there is no alternative to the charge of grievous bodily harm under section 319 if the State has not specifically pleaded an alternative on the indictment.
    

Are there alternatives open on the charge of grievous bodily harm under section 319 of the Criminal Code?

22. The State did not charge an alternative in the indictment.
    
23. The defence relies on the case of Reg v Polhill [1973]^[1]. In Reg v Polhill, on weak submissions by the prosecutor, Prentice J formed the opinion that section 579^[2] and or 584^[3] were not relevant (ss 542^[4] and 547^[5]). His view was that the Code retained the common law position that there could not be any alternative if not specifically pleaded. There was no further discussion.
    
24. Cannings J adopted the case R v Meauri [1969-70] ^[6] in State v Bassop [2010] ^[7]holding that it was open to the Court to find on “an indictment for intentionally doing grievous bodily harm under Section 315 to enter an alternative verdict of guilty of a lesser offence, eg unlawfully doing grievous bodily harm (Section 319), unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340), and serious assault (Section 341)”.
    
25. In R v Meauri [1969-70]^[8], Clarkson J, discussed section 579 and 584(ss 542 and 547). In that case, three accused persons were charge for causing grievous bodily harm and assault occasioning bodily harm. The Court in convicting one of he accused held that pursuant to the provisions under now section 542 and 547 of the Code alternative verdicts were available as long as the evidence discloses the similar offence. The Court specially found that on a charge of intention cause grievous bodily harm (s315) pursuant to section 542 of the Code, it was open to the Court to find an accused guilty of causing grievous bodily harm (s319).
    
26. The Court adopted the position in Regina v Bawai [1965-66]^[9]. In R v Bawai, section 579 (s 542) was discussed. The Court held that the opinion that pursuant to section 579 (s542): The relevant provision of s. 579 does not support any similar limitation. If the indictment charges a person with an offence, of which an intent to cause some specific result is an element, as in the present case, s. 579 enables him to be convicted of any offence which is established by the evidence and of which the unlawful causing of that result is an element, and without any limitation arising from any other element of the offence charged.
    
27. It stands to reasons therefore that pursuant to section 542(1) lesser alternatives are available to the charge of grievous bodily harm under section 319 of the Code, see State v Kaupa [2011]^[10] and State v Peter [2011]^[11].
    
28. Twelve years after R v Polhill^[12], the Supreme Court in Pah, The State v [1985]^[13], discussed section 542 of the Code. This was specifically on whether intention to cause grievous bodily harm under s 315 was an alternative to attempted murder under se 304. The discussion of the law is relevant to the present contention by defence counsel.
    
29. Section 542 provides for alternatives to charges under two categories:
    
    • (1) An offence of which the causing of some specific result is an element or
    • (2) An offence of which an intent to cause some specific result is an element. [Emphasis mine].
      
30. In attempted murder there is no element for a specific result or injury. Bredmeyer J illustrated in the following examples: “the accused intended to kill his wife and connected wires and passed an electric current through her bath. She felt the electric shock and called out but did not suffer injury. In the words of our section no specific result was caused. To take another example, if a person intends to kill his wife, mixes a lethal dose of poison, puts it in her glass and hands the glass to her to drink, he is guilty of attempted murder even though, in fact, she does not drink it. Or, if a man intends to kill his wife, and swings an axe at her head, he is guilty of attempted murder even though she ducks and avoids the blow”.
    
31. The examples demonstrate that the State need not establish or prove a specific result or injury in an attempted murder charge whereas in an intention to cause grievous bodily harm, the State must prove the specific element of injury, that is that that grievous bodily harm was caused.
    
32. The Supreme Court in the words of Bredmeyer J, held that on a charge of attempted murder “The causing of an injury is not an element of the offence of attempted murder” and as such the alternative of intention to cause grievous bodily harm was not open.
    
33. In the present context, when the word injury is used, Section 542 (1) reads:
    

Upon an indictment charging a person with an offence of which causing some specific [injury] is an element, the person may be convicted of any offence which is established by the evidence, and of which an intent to cause that injury or a [injury] of a similar but less injurious nature, is an element. [Emphasis mine]

34. It is therefore based on this rationale and the plain reading of section 542(1) that alternatives charges for lesser offences are open the charge of grievous bodily harm under s 319. I adopted Regina v Bawai [1965-66]^[14], R v Meauri [1969-70]^[15] and State v Bassop [2010]^[16].
    
35. In the present case, had I not been satisfied of the defence of self defence, it would have been open to me to find the accused guilty of a lesser offence.
    

Conclusion

36. The defence of self defence was fairly raised on the evidence. The accused raised it in his record of interview which was obtained the day following the alleged offence. He maintained that version in his oral evidence. The State did not negate it.
    
37. I find that that the accused acted in self defence against an unprovoked assault.
    
38. The State has also failed to establish the element of grievous bodily harm.
    
39. A verdict of Not Guilty is returned.
    

Orders

40. The Orders of the Court are:
    
1. A Verdict of Not Guilty is Entered.
2. The Accused is Acquitted.
3. The Accused is discharged of the Indictment.
   

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

^[1] PGSC 71 (9 April 1973)

^[2] Section 579 is as follows: “Upon 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 which is established by the evidence, and of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

^[3] Section 584 is, in part, as follows: “If, on the trial of a person charged with any indictable offence, the evidence establishes that he is guilty of another indictable offence of such a nature that upon an indictment charging him with it he might have been convicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.”
^[4] Section 542 is as follows:

“(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.”

^[5] Section 547(1) is, in part as follows: “If on the trial of a person charged with an indictable offence the evidence establishes that he is guilty of another indictable offence of such a nature that on an indictment charging him with it he might have been convicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.”
^[6] PGLawRp 254 (10 April 1970)
^[7] PGNC 169; N3921 (4 March 2010)
^[8] supra
^[9] PGLawRp 210 (4 April 1966)
^[10] PGNC 28; N4258 (21 April 2011)
^[11] PGNC 131; N4299 (31 May 2011)
^[12] supra
^[13] PGSC 15; [1985] PNGLR 188 (28 June 1985)
^[14] supra
^[15] supra
^[16]supra