State v Kengemar (No. 1) [2021] PGNC 595; N9491 (9 December 2021)

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CRIMINAL LAW - Verdict – Charge of Grievous Bodily Harm - Section 319 of the Criminal Code – Elements of the offence – Defence of Provocation and General Denial – Credibility of Witnesses - Sufficient evidence on elements of the offence – State negated Elements of Provocation - Find accused persons guilty as charged

1. GANAII, AJ: The defendants Sylvia Kengemar and Josepha Kengemar stand charged on an indictment dated 17^th November 2021, bearing one count each of Grievous Bodily Harm contrary to section 319 of the Criminal Code.

2. Both defendants and the complainant Jenny Toba are known to each other. Jenny’s son Elvis Toba is the partner of the accused person Sylvia Kengemar and they have two infant children. Sylvia Kengemar is the daughter of the accused Josepha Kengemar.

3. State alleges that on the 19^thof August 2018 the complainant Jenny was summoned to a mediation by her son for an existing issue between Jenny and Sylvia Kengemar. As they gathered at the mediation to resolve the issue, Josepha Kengemar approached Jenny from the back, grabbed her hair and punched her several times. Sylvia also joined her mother Josepha and punched Jenny on the head, nose and eyes resulting in injuries, loss of blood and 45 % permanent loss of vision to the left eye as a result of the punch to the eye.

4. The offenders pleaded not guilty to the charge. Sylvia raised general denial and Josepha raised provocation. A trial was conducted. In the light of the charge and defence raised, the issue is two-fold: firstly, has the State proven its case beyond a reasonable doubt that the accused persons assaulted Jenny and had the intention to do Grievous Bodily Harm? and secondly, has the State negated the defence of provocation beyond a reasonable doubt?

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

6. In the case of the State v Kapen [2012] PGNC 300; N5133 (5 April 2013) the elements of the offence of unlawfully doing grievous bodily harm under Section 319 of the Criminal Code are: that the accused; did grievous bodily harm to the complainant; and acted unlawfully.
Law on Provocation
7. The law on the defence of provocation reads:

(1) Subject to this section, “provocation” used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done–

(a) to an ordinary person; or
(b) in the presence of an ordinary person to another person–

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality”.

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he–

(a) is deprived by the provocation of the power of self-control; and
b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
(c) any force used is disproportionate to the provocation,

8. Provocation under ssection 267 of the Criminal Code requires the accused person to satisfy the court that: he is deprived by the provocation of the power of self control; acts on the provocation on the sudden, before there is time for his or her passion to cool, and provided further that the force used by the person charged is not disproportionate to the provocation; is not intended to cause death or grievous bodily harm; and the force used is not likely to cause death or grievous bodily harm.

9. Once there is sufficient evidence to raise provocation, the onus is on the prosecution to negate that defence. For the purpose of provocation, the loss of self-control is not an absolute loss of all control, but a loss related both to the degree of provocation and to the degree and form of retaliation. The reasonable man against whose reaction to the provocation the accused’s action is to be tested is an ordinary man in the environment and culture of the accused, but the test is objective and care must be taken that it does not become subjective and that it does not take account of any fact personal to the accused. R v Hand [1963] PNGLR 9.

No	Document Type	Exhibit Number
1.	Statement of Jimmy Siviri, dated 08/02/2019	State Exhibit “A”
2.	Statement of Alvis Mokun, dated 08/02/2019	State Exhibit “B”
3.	ROI of Josepha Kengemar, dated 07/02/2019 Pidgin and English versions	State Exhibit “C & C1”.
4.	ROI of Sylvia Kengemar, dated 07/02/2019 Pidgin and English versions	State Exhibits “D & D1”
5.	Photographs x 3	State Exhibits “E1-E3”
6.	Medical Report by HEO Ms Salenbe of Tokarara Urban Health Centre	State Exhibit “F”
7.	Affidavit of Dr S. Melenges, filed 22/11/2021	State Exhibit “G”
8.	Medical Report of Dr Simon Melenges dated 15/04/2019	State Exhibit “G1”
9.	Medical Report by Dr Dennis Likia dated 9/10/2018	State Exhibit “H”

11. State called sworn oral evidence from two witnesses Jenny Toba and Marie Rena. The evidence is restated below.

12. Jenny Toba is the complainant. She said she is the mother of Elvis Toba. Elvis Toba is a commanding officer with the PNG Defence Force, based at the Murray Barracks. Elvis Toba was previously married and has five children. Sylvia Kengemar is his new partner and they have a child.

13. On the 12^th August 2018, Jenny went to Elvis’ house at Murray Barracks and saw Sylvia Kengemar’s baby-sitter and baby in the house. She was upset because of her grandchildren from Elvis’s ex-wife. She felt sorry for her grandchildren who had left the house. She was not happy with Sylvia’s movement into Elvis’s house. She argued with the baby-sitter. She got her few belongings and left. The accused Sylvia was in the house. She came out and asked Jenny what her problem was. They had a brief argument.

14. Later, on the 19^th of August 2018, Jenny was called by her son Elvis and told to go to Four Mile Works Compound for a mediation. The reason for the mediation was because Sylvia complained to Elvis that Jenny had said offensive words to Sylvia on the 12^th of August 2018. It was on a Sunday, so after church, she and her family went to Four Mile Works Compound for the mediation. The mediation had not started yet and Sylvia’s grandmother, who is the mother of Josepha Kengemar, got an iron rod and said to Jenny: “Did you say Sylvia has aids?” She then wanted to hit Jenny on the eye. At that point in time, Sylvia herself attempted three times to hit Jenny but the men at the gathering stopped her.

15. Jenny said they had not commenced the mediation yet when the accused persons and their relatives tried to assault her. When she saw that they were trying to assault her, she tried to leave the mediation arena. She walked away for some distance and unknown to her, the accused Josepha Kengemar ran after her, pulled her by the hair from behind and started to punch her on the head and face. Jenny identified the accused Josepha Kengemar as Sylvia’s mother. She identified her in court by pointing to her sitting in the defendant’s dock.

16. She said the accused Sylvia also assaulted her. She identified the accused Sylvia in court as the person sitting in the defendant’s dock. Jenny said Sylvia punched her on the nose and eye. She sustained injuries and had a bleeding nose and swollen eyes. She then blacked out. She described being ‘blacked out’ as experiencing headache, bleeding and not being able to stand on her feet so she went down. She then heard voices and realised it was her daughter-in-law, Marie. Marie asked her to give the bilum. By then, Jenny realised her face was covered in blood and she sat down.

17. She saw the accused Josepha still holding onto her hair. She said Sylvia and her aunties pulled her and started assaulting her. A boy called Sammy came and removed Josepha Kengemar’s grip on Jenny’s hair. That was when Jenny was freed from Josepha’s grip. Jenny was then picked up by her husband and taken away. She said at that time, she could not see as her eyes were swollen, nose was bleeding and she had lost a lot of blood.

18. She did not go to the clinic that day as it was a Sunday and the clinic was closed. In the morning, she went to the Tokarara Clinic and was treated by the Health Extension Officer there. She was referred to the main Port Moresby General Hospital, at Three Mile. She was given medication for one week to treat the swelling in the eye. After the treatment to her eye, the swelling receded. However, Jenny said she continued to experience headache and found it hard to sleep. She also was not able to see properly and sew or tailor clothes like she did before. After the assault on her eye, she is now experiencing growths in the eye which has affected her vision.

19. In cross-examination, Jenny agreed that on the 12^th of August 2018, she went to Murray Barracks and saw Sylvia and the baby-sitter. She got angry and argued with them. She denied saying “Pamuk, aids lain, upla painim haus, na kam autsait” (translated to mean: Prostitute, Aids carrier, you are looking for a home, get out!)

20. On the 19^th of August 2018, she was called by Elvis and told to attend the mediation. She agreed that they called the mediation because she swore and so she went. However, the mediation did not take place because of the fight. She agreed that there was no formal mediation but her husband took the lead and said she will have to say sorry.

21. When put to her that she walked away and refused to accept responsibility and apologise she denied it. She said she saw them, they were agitated, and she had to walk away because she did not want her presence to provoke them.

22. Regarding questions asked about her police statement, she said she gave her original story to the CID. She spoke and the police wrote it down and read it back to her. She agreed to its contents and then she signed it. The witness was shown her statement and she confirmed her signature on the two pages. Jenny was referred to the second paragraph of her statement where she said that during the mediation the mediator told her to pay compensation to Sylvia. She said that this is what she is now saying in court, which is that her husband was the mediator and he told her to apologise and pay compensation.

23. Jenny was also referred to a part of her statement where she said that she will pay the compensation the following Sunday 26^th August 2018. She agreed that this was what she said during the mediation. She said she had mentioned that in her statement and this is the same story that she is now saying in court. She said her husband said she will pay compensation but because of the fight that did not happen. She never got to pay the compensation.

24. When put to her that her story in court is different to what was in her statement and that she is lying, the witness said she told the Police what happened but because of the fight she could not pay the compensation.

25. When it was put to the witness that she said bad words and that was the reason she was told to pay compensation, she said, that was a lie.

26. When put to her that if she did not say the bad words, she would not be told to pay compensation, she said Sylvia is married to her son and has a grandchild and it is better to make peace, reconcile and live together. It did not mean she said the swear words.

27. When put to her that her story in her Police statement about walking away after the mediation was over is inconsistent with her story now in court that the mediation was not over yet when she walked away, she explained that as they gathered, the mediation didn’t start as yet, then Sylvia and her grandmother were trying to assault her so she walked away.

28. When put to her that she swore again at the mediation place and that was when the accused Josepha assaulted her, she said she did not swear at the mediation arena. She said as the mediation was starting, they threatened to assault her.

29. When put to her that she did not tell the Police about Sylvia’s grandmother’s involvement, she said she did but the Police did not write it down.

30. The Police statement of the complainant Jenny Toba was tendered as a prior inconsistent statement and marked as Defence Exhibit “D1”.

31. In further cross-examination, Jenny confirmed that she did say that she bled and was unconscious. When put to her that in her police statement she said she woke up later in their family home, she said that was not true.

32. When put to her that her story in the police statement is not true and she lied when she signed the statement as a true record of her story, she said the story was typed in English. There was no interpreter and the police officer read it to her. She heard, agreed to its contents and she then signed it. When asked if the Police officer asked her if she understood her statement before signing it, she said the police officer read it in pidgin back to her and she heard, understood, accepted and signed it.

33. When referred to her statement where she stated that she was carried to her son’s house, she said her husband picked her up. When suggested that she is lying, she said she walked on the road, did not reach any house yet and her husband picked her up.

34. When put to Jenny that she said she could not go to the Tokarara clinic the same day as it was a Sunday and they were closed, she said she went the next day and was referred to the Port Moresby General Hospital. When asked if it is true that she went to the eye clinic on the 9^th of October 2018, she said she went every month until a report was made and given to her.

35. When it was put to her that it was two months after the incident, when she saw the Eye Doctor, she said yes. She said she had been going and coming since the incident. The hospital gave her a review date and that was the date they put on the report. It must have been the date they said to see her for the review so she went.

36. When put to her that after the treatment her vision improved, she said at first she was not able to see due to the swelling on her eye. After the treatment she was able to see. The Doctor wanted to operate her eye but her elder sister said no and so the Doctors only gave her medication to take orally and told her to return to the hospital for the review. When it was put to the witness that after two months her eyes have improved, she said no. She still went for check-ups.

37. When it was put to her that her words had provoked the accused Josepha Kengemar and that was why Josepha Kengemar ran after her and punched her, she said it was a Sunday and she cannot tell lies in the eyes of God. She said her husband and a boy from their side wanted to mediate and the defendants started the fight. The witness maintained that she never said a word to provoke them. She said Josepha Kengemar assaulted her up first and that is why they are making up this story. She did not do or say anything to provoke or frustrate Josepha at that time.

38. Before the assault, and before the 12^th of August 2018, Jenny said she did not have any grudges with Sylvia Kengemar and they never argued before. The argument on the 12^th, was the first of its kind and Sylvia knows that.
39. She said she attended the mediation on the 19^th of August 2018, because her son Elvis called her and summoned her to attend the mediation. She listened to her son and attended. There were no village court officials to officiate at the mediation. Before the mediation started, the accused persons and their relatives wanted to fight so Mr Toba intervened and said Jenny will look for the money to resolve this issue. Jenny agreed. Mr Toba did not want anything bad to happen to anyone.

40. When asked what she felt when her husband told her to look for the money to solve the problem, she said she felt that it was ok. After agreeing, she got up and went. Jenny said she left because she did not want trouble. As she walked out, the accused Josepha came from behind, pulled her and assaulted her. Josepha pulled her head down and Sylvia also came and assaulted her.

41. When asked about the Medical Report dated 09^th October 2018, she said she saw the Doctor in charge of the Eye Clinic and they gave her that Report. When asked to see and comment on the report, she said she cannot read properly but she recalled she was seen by Dr Melenges and Dr Kipu. Those are the only two doctors whom she knows by face and name. For the other Doctors, she said she does not know their names. When asked about Dr Likia, she said she cannot recall or remember him.

42. Marie said she is of mixed parentage Central and Chimbu Provinces. She is married to Jenny Toba’s last-born son. On the 19^th of August 2018, she went to Four Mile Works Compound for a mediation. When they arrived there, they wanted to fight. Mother Jenny saw it and she had to leave.

43. There were no village court officials there to start the mediation. Their father Mr Toba and one of Sylvia’s brothers wanted to officiate at the mediation but because the accused persons and their relatives wanted to fight, Jenny had to leave.

44. When asked what makes her say they were about to fight, she said Sylvia wanted to assault mum (Jenny) and Daddy Toba and Sylvia’s brother stopped her. Mother (Jenny) then left. As Jenny was leaving, Sylvia’s mother ran and pulled her hair and hit her. When asked who Sylvia’s mother is, the witness pointed to the accused Josepha Kengemar seated in the accused’s dock.

45. Marie said as Josepha was hitting mother Jenny, she saw Sylvia run and assault mother Jenny also. Marie was standing and watching. When asked how Josepha assaulted the victim, she said she used both folded fist and punched her in the face and head. Marie felt sorry for mother Jenny and told her to give her the bilum. Marie ran to her, and she saw that as mother Jenny was standing, her hair was pulled down and her head was pushed downwards towards the ground. She stood next to her head and asked her for her bilum. She saw blood on her face, her nose and mouth and her face was swollen.

46. Marie said when she got the bilum, Sylvia’s in-laws went and stopped Sylvia and took her away. Sylvia assisted her mother and also assaulted mother Jenny. When asked to describe how Sylvia assaulted Jenny, she said Sylvia punched her three times on the left side of her head. When asked if she heard Jenny say anything to Sylvia to provoke them, she said she was there and Jenny did not say anything to provoke them.

47. Josepha’s boys took her away and the fight stopped. After that Jenny’s sons took Jenny away towards the Barracks Road.

48. In cross-examination, the witness agreed that Sylvia attempted to hit Jenny and Jenny left. There were no mediation officials except for Mr Toba and Sylvia’s brother. When Jenny was leaving, Sylvia’s mother ran after her and assaulted her.

49. When asked if Jenny used foul languages at that time, Marie said no. She said Sylvia wanted to assault Jenny and that was why Jenny was leaving. When asked again if Jenny said the swear words to Sylvia, Marie said she did not know. She clarified her answer when asked further and said she did not hear mother say anything bad to Sylvia. She agreed that when Jenny walked off, Josepha went after her and assaulted her. She agreed also that Sylvia went and punched mother Jenny three times on the head.

50. Witness was shown her police statement, and asked to confirm her name, and mark. She confirmed those. After her statement was obtained, she said it was not read back to her.

51. It was put to the witness that in the statement, she said after the mediation, Jenny left, but now her story is that the mediation did not start yet and the fight occurred. She said what is in her statement is true. When it was put to her that her oral evidence in court and what is in her police statement are different in regard to the timing of when Jenny left, i.e., whether it was before or after the mediation, and that she may not be telling the truth, she said, they were talking, and also, they wanted to fight and so Jenny left. When asked if that was after the mediation as per her statement to the Police she said yes.
52. The Police statement of the witness Marie Rena was tendered as a prior inconsistent statement and marked as Defence Exhibit “D2”.

53. Marie agreed that it is true that when Josepha was assaulting Jenny, Sylvia also assaulted her. Jenny was not lying on the ground, but her head was pulled down. Marie said, she was closer and not far away when she observed. This was because when they assaulted mother Jenny, she ran to mother Jenny and was standing next to her head. When asked if she saw Sylvia hit Jenny on the head, she confirmed that she saw that.

54. In re-examination, Marie was asked whether she understood the term ‘mediation,’ she said no. She said she knew they went to resolve a dispute.

55. Witness is the Chief Ophthalmologist at the Port Moresby General Hospital, with 30 years of experience. He recalls giving this report. The report bears the common seal of his unit, his signature, and he is able to recognise those. The report concerns an adult female, seen on the 09^{th of} October 2018.

56. Dr Melenges was shown another Report dated 15^th April 2019. It has the letter head of the Division of Ophthalmology, with his name, signature and his University credentials. He also produced an affidavit concerning that report.

57. The Medical Report and Affidavit of Dr Melenges were both tendered without objection and marked as State Exhibits “G and G1”.

58. Witness is aware that the subject patient was first seen by Dr Litia who was the registrar of the unit in 2018. As head of the Division, Dr Melenges made clarifications on the report. He stated that all registered cases and reports are kept by their unit administration staff. The Doctor was shown Annexure “A.” He said it is an authentic medical report from Dr Litia. It is stamped with its original stamp. All reports have been registered on their computers on a register.

59. The Report of Dr Litia was tendered through Dr Melenges via s 61 Evidence Act, without objection and marked as State Exhibit “H”.

60. Dr Melenges was referred to paragraph 2 of the Report, which showed a reading of 6/30, describing the loss of eye function of the patient. He was asked to explain the medical terms in the report. He said the term ‘Restructure of the left medial’ referred to the eyes having different muscles. The medial is in the centre. This muscle in the centre is not working to its fullness. It is restricted to full movement due to a scaring as a result of a trauma. He said trauma to the eye can cause such an injury. He further said that a punch or use of stone on the socket is referred to as blunt trauma which can cause such a result.

61. When the Doctor was asked to explain the third last line of the report which stated that there was ‘Funduscopic examination’ he said that examination revealed swelling in retina due to water in the eye structures causing less function.

62. Dr Melenges commented on Dr Litia’s 2018 report and said the term ‘retina commissure’ meant that the retina folded with impact of blunt trauma. They obtained this result by looking at the eye (retina) with special tool. It showed a permanent injury affecting vision.

63. Dr Melenges further explained that the reading 6/18 was the result of the function of the eye. This was achieved with the help of an aid. The patient’s vision improved after the water was resolved and the patient’s vision improved by one line based on the medical chart used to make the assessment. Accordingly, the patient had 45% loss of vision on the left eye based on use of this chart. The Doctor said anything below 6/60 is legal blindness. Based on the history of the report of the patient by Dr Litia, Dr Melenges said such an injury to the eye is consistent with a punch.

64. In cross-examination, Dr Melenges was asked whether after the passage of time, referring to three months from the date of injury and before the patient saw the Doctor, there would have already been some improvement in the eye before such a finding is made and referring to Medical Report by Dr Litia on 09^th of October 2018. The Doctor said any improvements to the eye will depend on the size of the blunt trauma and whether all the eye structures were involved. It depends on which structure in the eye is involved. In his experience, the Doctor said where there are trivial injuries, the eye will improve slowly. But people may lose vision if all the eye structures are destroyed. The Doctor said this patient’s injury is to the retina because of the content of the water in the eye structures due to the injury. It is able to improve. Otherwise, blunt traumas may cause people to become blind.

65. The Doctor was referred to his Medical Report of the 15^th of April 2020 and was asked to explain again the second last paragraph where he said the patient ‘was treated and has recovered’. The Doctor said upon examination, the content of water in the retina in 2019 has gone down resulting in improved vision to one more line, based on the reading on the chart being at 6/18. The treatment was that the patient was put on steroids and medication for a period of time, to rid the water in the eye. The general appearance of the eye improved but not so much the vision and just the physicality of the eyeball had improved.

66. The Doctor was asked if he is able to tell if there is a possibility of continued recovery three years after the injury. He said chances are weighed down. It takes two years at the most to allow structures to recover or improve on treatment. Visuality is slow and may not improve.

67. The Doctor was told to explain that three years since the incident, (i.e., since 2018), he is now saying that there is no possibility for the patient’s eyes to improve, he said his statement is correct as according to experience, the recovery period is in the third year weighing over two years.

68. The court asked the Doctor to confirm for the Court’s understanding of his evidence of the two different readings 6/30 and 6/18 contained on his report. He said the 6/30 reading was a record from the previous assessment and report by Dr Litia and he obtained that from the records and mentioned it in his latest report. His latest assessment and reading was 6/18. In his latest report, he mentioned both results in the one report. He said that he may have made a mistake by not explaining that in his report. Nevertheless, the results and readings are correct. The assessment by him with a reading of 6/18 showed an improvement after the use of pin-hole technique. He said the pin-hole technique did improve the patient’s vision.

69. The Court also asked if the water content in the retina caused the swelling in the eye, the Doctor said the water in the eye was as a result of the blunt trauma which caused the eye injury.

70. On the 19^th of August 2019, the accused Josepha said they held a gathering at Four Mile to resolve an outstanding issue. The issue related to Jenny Toba going to Elvis Toba’s house and swearing at Sylvia. Sylvia cried and went to Josepha’s house and told her. Sylvia told Josepha that Jenny swore at her and told her not to go into the house. Jenny also called her a pamuk (prostitute), aids carrier, and told her to take her bastards to her parents’ house.

71. Josepha said at the mediation, Mr Toba told Jenny Toba to apologise and she refused to say sorry, saying why would she apologise to this pamuk and she walked off. When asked if that was before the mediation commenced, she said Mr Toba wanted to talk, and they did not resolve on anything as Jenny Toba did not want to say sorry. Josepha said she saw Sylvia holding onto the child and crying and she felt sorry for them. She then followed Jenny only to bring her back to settle the issue but because Jenny did not want to come back Josepha assaulted her.

72. Josepha said when Jenny did not come back, this made them angry and she assaulted Jenny. She said she was frustrated and she folded fist and punched Jenny four times on the face. When asked where Sylvia was, Josepha said they saw her assault Jenny and they all ran towards her. Jenny’s son then took Jenny away and Josepha’s boys pushed Josepha away. This was when everything ended and everyone left.

73. In cross-examination, Josepha said it was not her idea to go to Four Mile Works Compound for the mediation. She wanted the family to cook, share food and say sorry but it was Elvis Toba who called his mother Jenny and summoned her to the mediation.

74. When it was put to her, Josepha said at that time she was not frustrated or angry over what Jenny said to Sylvia on the 12^th of August 2018. She said they became frustrated when Jenny was reluctant to say sorry and refused to pay compensation. She agreed that she was cross and angry because Jenny chased her daughter out of the house. She further said she only wanted Jenny to say sorry. Josepha said when Jenny confessed that she said these words, her husband told her that both of them will say sorry.

75. Josepha agreed that Jenny walked away because she admitted. It was then when Josepha’s mother who is Sylvia’s grandmother was angry when she heard Jenny made admissions. She denied that her relatives were drunk and aggressive.

76. When put to her that out of frustration she followed Jenny and punched her, she said Sylvia was her one and only daughter and she was upset. She said she hit Jenny four times but did not do it because Jenny was her enemy. She denied that her daughter Sylvia went to assist her and said she was the only one who assaulted Jenny and no one else assisted her.

77. When it was put to the witness that what she did was unlawful, she said, if Jenny had said sorry, or if she had remained to resolve the issue, the assault would not have happened. She also said Jenny had no right to call Sylvia aids carrier and pamuk. She said if Jenny stayed and did not walk away, they would be able to sort things out. When asked that as a result of her actions, Jenny suffered from permanent injury, she agreed.

78. In re-examination, when asked if she told Elvis to hold the mediation, she said yes in a family gathering but not in public as it happened.

79. She disagreed that because Jenny chased her daughter out of the house, she became frustrated. She maintained that Sylvia did not assist her assault Jenny.

80. She agreed again that when Jenny walked away from the mediation, she was angry, she followed her and punched her.

End of Josepha Kengemar’s evidence
Sylvia Kengemar – Examination in Chief

81. Sylvia works with the PNG Defence Force as a Personal Trainer and Instructor.

82. She recalled that on the 12^th of August 2018, between 3- 4pm, she was at home when Jenny approached her and the babysitter. Jenny was screaming saying “em haus blo upla ah? Pamuk, get out, yu bai givim sik aids lo pikini man blo mi” (translated to mean: Is this your house? Prostitute, get out or you will transmit the Aids virus to my son”.

83. Sylvia said she was shocked and told Jenny to wait and she called Elvis. Elvis is her husband and the son of Jenny. When Sylvia was calling for Jenny to wait, she got on a vehicle and they took off. After 30 minutes, Elvis drove in. She told him what had happened and she went to her parents’ house. At her parents’ house, she was upset, cried, and told them what had happened. She said Jenny called her “pamuk and aids carrier” and told her to leave the house. Her mum Josepha was upset. Sylvia said Josepha told her to tell Elvis that the family must have a mediation and ask Jenny to tell them what her problem is.

84. On the 19^th of August 2018, they were at the Four Mile Works Compound to resolve the issue. One of the community leaders said to handle the case but Mr Toba stood up and said it was a family matter and he will lead the mediation.

85. He called Jenny and said they were family and so she must apologise to Sylvia. Jenny admitted that the words were true then Sylvia’s grandmother cried and said she did not have aids, how can her grandchild have aids.

86. After that, Sylvia said Jenny again used the words ‘pamuk’ (prostitute) on her saying: “Sylvia is pamuk (prostitute) and why would I say sorry.” Sylvia said Jenny then walked off towards Murray Barracks. Josepha shouted and told her that she was the troublemaker and that she should come and sit down and they will resolve these issues. Sylvia said Jenny then responded saying why would she say sorry and described Sylvia as a ‘rubbish child.’ Sylvia said because of Jenny’s statement, Josepha went and pulled Jenny by the blouse and punched her three to four times on the face. Sylvia said she was at the back about fifteen metres away from them. Jenny was continuously saying those words until Josepha punched her for about 5 seconds and their nephews went and grabbed Josepha and Jenny’s last-born son went and took Jenny away.

87. In cross-examination, Sylvia said she is the second wife of Elvis. She started to live with him when she was eight months pregnant to their child. They started dating in 2017. Elvis had a breakout with his first wife. At the time of their relationship, Elvis’ five children were living with their mother.

88. She said after the incident on the 12^th of August 2018, she did not exaggerate to her parents about what Jenny had said. She has her neighbours as her witness. She told them what she heard and they were upset.

89. On the 19^{th of} August 2018, she said there were mediation officials, but Mr Toba, Jenney’s husband offered to speak and officiate at the mediation.

90. Sylvia again denied exaggerating and telling her family false stories. She disagreed that when Jenny refused to apologise and walk off, this agitated her family the more as they were already angry.

91. Sylvia denied assisting Josepha in assaulting Jenny. She disagreed that Jenny walked away to prevent them from assaulting her. She said Jenny walked away because she refused to apologise and continuously said abusive words to Sylvia. She also denied that her family were violent and assaulted Jenny.

92. Sylvia said Elvis chose not to be at the mediation. He only told them to go and sort things out. Although they were upset, and the mediation was not successful she went home and discussed with Elvis and they decided not to take matters to court against Jenny but to resolve it at the family level.
93. She denied that she was not involved in the assault but it was unlawful and Jenny suffered from permanent injury.

94. In re-examination, she said there were mediators but Mr Toba wanted to lead in the mediation. She again said she did not exaggerate on what Jenny said to her parents. She denied assaulting Jenny. She agreed that the reason for the assault was because Jenny walked away, repeated defamatory remarks and refused to solve the problem.

End of Sylvia Kengemar’s evidence
Peter Dumbgo, Examination in Chief

95. This witness is from Chimbu. He is a Village Court magistrate and mediator. He recalled the 19^th of August 2018, and said he was at Four Mile Works Compound. His main evidence is that Sylvia was the main complainant in the mediation. He was there to officiate but Mr Toba said to lead the mediation. Jenny said bad words to Sylvia and Josepha attacked Jenny. Sylvia did not assault Jenny.

96. The accused Josepha Kengemar raises the defence of Provocation under section 267 of the Criminal Code. The accused Sylvia Kengemar raises the defence of general denial.

97. The accused Josepha Kengemar admitted assaulting the complainant on the 19^th of August 2018. She said she only punched her four times on the face. The reason she did this is because the complainant provoked her.

98. The evidence demonstrated that the complainant provoked Josepha Kengemar on the 19^th of August 2018 by refusing to say sorry to Sylvia Kengemar, continuing to verbally assault Sylvia and walking away from the mediation area.

99. Punching four times on face is proportionate to the provocation. Case of State v Fasean [2014] PGNC 68; N5596 (13 May 2014), to be considered in finding that the accused Josepha did not mean to cause GBH.

100. All three defence witnesses say Sylvia did not assault Jenny. State witnesses gave inconsistent statements and should not be believed. Jenny said Sylvia hit her on the face and broke her nose and Marie said Sylvia hit Jenny three times on left side of her head. The other inconsistencies are that Jenny said her husband picked her up when Marie said her sons took her away and they walked towards the Barracks. Also, Jenny said she was laying on the ground, when Marie said she was standing and her head was pulled downwards.

101. In Jenny’s oral evidence, she denied saying sorry to Sylvia, she denied agreeing to pay compensation and she said the mediation did not start yet when she walked off. This is not consistent with what is in her Police statement dated 20^th August 2018. In Marie’s evidence, defence submitted that when the inconsistencies were put to her, she said her story to the Police is true, which would mean that her oral testimony is untrue.

102. Defence submitted that it is trite law that where serious inconsistencies exist, there is a possibility of false testimony and therefore it is unsafe for the Court to act on and rely on such evidence. The inconsistency test is applied to many cases in weighing up and analysing evidence. Two cases are: St v Wairo [2004] PNGLR 3 and State v Tunamai Unreported Judgment delivered on the 15^th of February 2000 N1989. The Court should warn itself before accepting their evidence for reasons of inconsistencies and also they live together and can easily corroborate their stories in saying that Jenny did not swear and that Sylvia also assaulted Jenny.

103. Defence submitted also that State did not call any independent witnesses. The defence did call an independent witness by calling the village court magistrate Peter Dumbgo who supported the defence case.

104. State submitted that the complainant’s story is simple and logical as she willingly attended and participated in the mediation. She said both accused persons assaulted her. The extent of her injuries is contained on the HEO’s report. The expert Eye Doctor’s evidence showed significant findings of trauma to Jenny’s left eye. There are photographs showing swelling on the face and this is confirmed in the HEO’s report from her observations when conducting an examination on the patient.

105. State further submitted that the Court should not accept Sylvia’s denial of her participation and involvement in the assault on the complainant. Josepha is elderly and could not have effected punches that would have caused such injuries. Such injuries are consistent with a younger and stronger person like Sylvia, who was a Physical Trainer and Instructor with the PNG DF.

106. State also submitted that the Defence witness Mr Peter Dumbgo who was a Village Court Magistrate and Mediator said Sylvia did not assault the complainant. However, he either may not have been there or is untruthful on this because he said Sylvia reported the matter to him for mediation when Sylvia said they only wanted to resolve it at the family level. State submitted that the defendants’ evidence is that they never met with the mediator before the mediation day. As such, Mr. Dumbgo was not there or if he was, he is untruthful. The Court must reject his story.

107. State finally submitted that the court will find that the accused Sylvia did assist her mother in assaulting Jenny.

108. On the elements of the offence of Grievous Bodily Harm, State submitted that the Medical evidence is sufficient in showing the nature of the injuries. The assault was unlawful. Sylvia’s denial will be rejected as she shows a guilty conscience by trying to blame diabetes as the cause for the complainant’s poor eye vision when it was not put in cross-examination to the state witnesses, resulting in a breach of rule in Browne v Dunn (1893) 6 R. 67 (HL). Consequently, she cannot be believed.

109. Where Josepha raised provocation, State submitted that State witnesses’ evidence was not discredited. The court is to assess the credibility of all witnesses according to the principle in Balbal v State [2007] SC860 and Waranak v Dusava [2008] PGSC 25 SC 942 and accept that the State witnesses were telling the truth. Court will find that there was no provocation.

110. State also submitted that Marie Rena’s evidence is strong. The Defence witnesses were not credible. Jenny walked without saying anything to get away from any angry mob and that is not a provocative act. Since there is no provocation, the issue of proportionality to provocation does not arise. The complainant was also attacked from behind which meant she was not in apposition to defend herself. Provocation and proportionality issues do not arise.

111. Although not in dispute, there is sufficient evidence on identification. The accused Josepha Kengemar does not dispute her involvement in assaulting the complainant. She however, raises the defence of Provocation. Sylvia does not deny being present at the mediation or crime scene. She raises the defence of General Denial, saying she did not participate in assaulting Jenny.

112. Whilst it is true that Jenny and Marie lived in the same household, there is no evidence to suggest that they coached each other to tell their story. If they did, their stories would for most part of it be identical in the words they used. That was not the case. The inconsistencies that the defence pointed out were sufficiently explained. They told their story according to what each of them observed, from where they were observing and their understanding of the questions by counsels at that time. Consequently, I find that they did not lie. I accept them as witnesses of truth.

113. To illustrate the credibility of the State witnesses, I discuss some aspects of their evidence which the defence submitted on. The defence submitted that they were not truthful as their stories were inconsistent with each other’s and they have coached each other.

114. Although Josepha said she was the only one who hit Jenny, and Sylvia denied involvement, both Jenny and Marie said Sylvia did assault Jenny as well. Jenny said Sylvia hit her on the face whilst Marie said Sylvia hit Jenny three times on the left side of her head. If Jenny and Marie coached each other, given the significance of the left eye injury supported by the medical report, Marie would have also and very easily said that Sylvia punched Jenny nowhere else but in the left eye just as Jenny said and as contained in the Medical Report. But Marie did not say that. She said from her observations, she saw Sylvia punch Jenny on the head. For that I find Marie to be honest. She would have easily made up the story if she wanted to but she did not. She told her story from what she observed. Hence, although their stories were different in this regard, they are not inconsistent and they would not have coached each other. I do not find that they were lying.

115. Further, I note that Marie was observing from a distance before she ran closer towards Jenny. There is a possibility that she would have missed seeing Sylvia punch Jenny on the face or the eyes to be specific. Regardless, I accept that Marie was there when she witnessed the assault. Being married to Jenny’s son, she was concerned for her mother-in-law. I find that she did approach Jenny to get the bilum and she did see Sylvia punch Jenny on the head. In saying that, I am mindful that, in law, even if Sylvia did not punch Jenny on the face or eyes causing the injury, and where she did not express dissent to Josepha’s actions, both defendants acted together whereby where Josepha punched Jenny on the eye, Sylvia could also be held accountable for the assault by operation of section 7 of the Criminal Code or vice versa.

116. Further, where Defence submitted that the State witnesses’ stories were inconsistent, I do not find this to be the case. Jenny said her husband picked her up whilst Marie said Jenny’s sons took her away walking towards the Barracks. I do not find that they told inconsistent stories and therefore they lied. This is because their stories meant different things that happened at different time intervals. In cross-examination, Jenny’s evidence became clearer on this aspect of the State’s case. She said that as she was walking away towards the barracks, her husband went and picked her up and took her to the Police station. Josepha also said stories that supported the State’s version. She said Jenny’s son came and lifted Jenny away. That is consistent with what Marie said. Hence, consequently, I accept that in the sum of Jenny’s, Marie’s and Josepha’s evidence, Jenny was assaulted, held by the head and pushed down; then her sons lifted her up and took her away, and finally her husband picked her up on the way as her sons were walking her towards Murray Barracks. This best explains what Jenny and Marie meant in the different parts of their stories. Again, I do not find that their stories were inconsistent in this regard. If they coached each other as the defence submitted they did, their stories would be identical word for word but they were not. They told their own stories according to their individual observations. I do not find that they were coached or that they were lying because they told their stories differently. Their stories cannot be inconsistent to each other’s.

117. A further example to illustrate the credibility of the State witnesses is on the issue of whether Jenny was on the ground or not when she was assaulted. Defence says both state witnesses said different things, and therefore their stories are inconsistent and they are being untruthful. It is worth noting that Josepha did say Jenny’s sons lifted her up and took her away. That would mean Jenny was indeed on the ground and therefore Josepha’s story would be consistent with Jenny’s and Marie’s evidence. Put together, the sum of their story is that Jenny was pulled by the hair and she went down before she was helped up and taken away. Jenny’s own story about how she was hit and how she went down is according to her own personal experience of being the victim of the assault and the primary state witness. I do not find that these stories are inconsistent and I do not find that both Jenny and Marie were coached or that they were lying. Their evidence cannot be inconsistent to each other’s,
118. In Jenny’s oral evidence, she denied saying sorry to Sylvia, denied agreeing to pay compensation and said the mediation did not start yet when she walked away. Defence says this is not consistent with what is in her Police statement dated 20^th August 2018. However, she had provided an explanation for that. As I understand her evidence to be, when she said it was ok to pay compensation but then she had to leave because they were going to fight, I accept that Jenny meant to say that she never got to paying the compensation not because she denied any responsibility but it was because they were going to fight and she had to go away. Her other answers in denying responsibility in her oral evidence were said to mean that when the fight occurred and she had to go, they never got to meet to settle on the compensation. I accept that to be Jenny’s way of explaining what happened at the mediation and not to deny responsibility for her actions of the 12^th of August 2018 or not to deny her having to own up and her being prepared to pay compensation. Jenny also maintained that she did not say any offensive words again at the mediation arena.

119. In Marie’s evidence, where the defence put to her suggested inconsistencies, she sufficiently explained that as they were talking to open the mediation, the accused persons’ family were trying to fight Jenny and so Jenny left. When asked if that was after the mediation as per her statement to the Police, she said yes. I accept that she was referring to two things, firstly, that the mediation started when they were starting to talk, but it did not progress and had to end because the fight occurred, and so everyone had to leave. Her story is not inconsistent to Jenny’s story in this regard nor is it inconsistent with her prior statement to the police in the same regard.

120. For all of the above, Jenny and Marie’s stories did not contain inconsistencies so as to create doubts in the mind of the court as defence submitted. Their evidence was based on what each of them observed, and at what point in time or under what prevailing conditions they had made those observations. The witnesses have told their story according to their understanding of the questions asked by counsels and how best they could answer them.

121. Whilst there is no independent witness for the State and where Jenny and Marie come from the same household, there is no evidence to suggest that they have coached each other. I accept their evidence that both accused persons assaulted Jenny in the manner explained by the state witnesses in their evidence to court. I also accept that both defendants are responsible for each other’s actions by operation of section 7 of the Criminal Code.

122. Josepha Kengemar’s story demonstrated to me that she was a mother who loved and cared for her daughter Sylvia and her grandchildren and did not want them to be hurt. Naturally, as mothers would, she had pity for her daughter when her daughter Sylvia’s mother-in-law Jenny, used offensive words against Sylvia. At the mediation, some seven days later, Josepha’s state of feeling sorry turned into anger and she assaulted Jenny. When discussing the issue of provocation, I discuss further Josepha’s credibility and demeanour.

123. On the issue of Sylvia’s involvement, Josepha had spoken in defence of her daughter by saying that Sylvia did not participate in the assault. In the light of the discussion above, and in accepting the story of the State witnesses, I say that Josepha’s story is an attempt to ensure that her daughter Sylvia is not convicted as this would be detrimental to her career as an officer of the Disciplined Force, PNG DF. I therefore, find that in that regards, she had tried to distance Sylvia to the crime. In doing so, she was not being truthful.

124. Sylvia Kengemar denied involvement. She is well aware that as a disciplined officer of the PNG DF, if found guilty, her career can be affected. I have accepted State witnesses to be credible and find that Sylvia was involved. I find that Sylvia had also tried to distance herself from the assault. In so doing, she was not being truthful.

125. One other aspect of Sylvia’s evidence which showed her attempt to deny responsibility, was when it was obvious in the defence case that they had failed to put their story to Jenny that Jenny’s diabetics condition has affected her vision and it was not as a result of the assault. The breach of the cardinal rule in Browne v Dunn (1893) 6 R. 67 (HL), demonstrated her consciousness of guilt and involvement.

126. I am satisfied that the injury inflicted on the complainant had caused permanent injury. The Medical Report, photographs, and clinical notes of the Health Extension Officer show sufficient evidence that the injury to the left eye is permanent. Questions were not put to the Doctor if diabetes or old age has caused the loss of vision and that submission is rejected.

127. The defence of provocation is provided for under Section 267 of the Criminal Code. It states:

“(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

128. The onus is on the State to disprove one or more of the elements of the defence beyond reasonable doubt. Those elements being, as explained by Lay J in The State v Roland Rebon (2008) N3495, that: the accused was deprived by the provocation of the power of self-control; and the accused acted on the provocation on the sudden and before there was time for his passion to cool; and the force used was: (a) not disproportionate to the provocation; and (b) not intended to cause death or grievous bodily harm; and (c) not likely to cause death or grievous bodily harm.

129. If the State cannot disprove at least one of those elements the defence of provocation will succeed. The grievous 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). I will address each question in turn.

130. I now respond to the issue of whether there was provocation, and whether the accused was deprived by the provocation of the power of self-control.

131. The defence case as far as Josepha is concerned is that when Jenny walked away without saying sorry and saying the words “why should I say sorry to a pamuk (prostitute)” she provoked Josepha who then followed her to bring her back. When Jenny refused to come back, she provoked Josepha who assaulted her. The Defence of provocation did not apply in Sylvia’s case as she raised general denial.

132. If I accept that Jenny acted in a provocative manner by walking away, and saying offensive words, then that would amount to provocation in light of what happened on 12^th August 2018 and considering that on the 19^th of February 2018 during the mediation, Jenny had owed up and agreed to pay compensation.

133. The Defence witnesses say Jenny said the offensive and provocative words. State witnesses say she did not. The issue is whether Jenny did say those words again, which would then provoke Josepha. To determine this issue, I refer to both accused person’s answers in their defence at the first available opportunity during the conduct of the Police Interview, and as contained in their respective ROIs which forms part of the State’s case.

134. Firstly, I refer to the ROI of Josepha Kengemar. At Question and Answer 20, when asked whether a decision was reached at the Mediation, Josepha answered saying: “No decision, Jenny walked off, I got angry and went after her and assaulted her”. At that time, Josepha had the opportunity to tell the Police that she was provoked by Josepha’s words or actions but she never said Jenny provoked her by using those words again nor did she say Jenny provoked her by refusing to come back to the mediation. This story told by Josepha at trial in my view was belated, therefore did not happen and consequently, was an attempt to avoid conviction and punishment.

135. Josepha was feeling sorry for her daughter Sylvia however, at the mediation, she was an agitated and angry person. Where six days had passed since the incident of the 12^th of August 2018, and where there was time for her passion to cool over time, Josepha exhibited criminal intent by becoming vengeful by assaulting the complainant. She did not only say she felt sorry for her daughter and the baby. She also did say she was angry. Her emotions of feeling sorry for her daughter had obviously turned into anger which then caused her to take revenge. Her actions were of a mother taking revenge on someone who had offended against her daughter, then of a mother who was just feeling sorry for her daughter. The reactions of their relatives, namely Sylvia’s grandmother and aunties who had gathered at the mediation arena at that time, were all similar to that of Josepha and Sylvia’s behaviour. They were all angry and wanted to fight the Jenny. They tried to assault Jenny even before the mediation started. I find that they had all gone to the mediation arena to get back at Jenny. Jenny did not provoke Josepha as Josepha was already vengeful.

136. In Sylvia’s answers in her ROI, at Question and Answer 23, the question was asked:” What was the decision at the Mediation?” She answered: “Mediation ordered Jenny to apologise, she denied and accused me as a prostitute and Aids victim and walked off.” I find that answer to be a calculated response particularly when Josepha’s evidence did not corroborate hers and especially where Josepha is the one raising provocation. Sylvia is well-educated and knows better that she must say this in order to help their case. She is educated enough to know the consequences that would befall her career life if she was found guilty. It was easier for anyone including the defendants to say that Jenny said the offensive words again especially when Jenny herself had owned up to saying these words before. I do not find that Jenny would have said those words again in front of Sylvia’s family and especially when she had taken ownership of the problem and accepted to address the mediation. I do not find that the provocation raised by Sylvia and Josepha which is that Jenny walked away and swore is true.

137. Further, provocation as a defence is crucial to the defence case and especially for Josepha’s case where she admits to the act of assault. Her first opportunity to raise this was during her interview with the Police but she did not. In the ROI, Josepha said, ‘she went to bring Jenny back but because Jenny did not listen to her she assaulted her.’ She also said this again at trial. She did not say Jenny said ‘pamuk’ (prostitute) and she assaulted her. Josepha and Sylvia’s stories do not support each other’s in this regard. Josepha’s reason for assaulting Jenny as she said at trial was ‘because she felt sorry for Sylvia and her children and when she asked Jenny to come back and she refused, she assaulted her’. That cannot be provocation. Josepha did not say at that time, that Jenny used offensive words or that Jenny denied responsibility. Consequently, there is no provocation.

138. I accept Jenny and Marie’s story that before the mediation began, there were attempts to assault Jenny. Both State witnesses said these attempts were made by Sylvia’s grandmother where she used an iron rod to threaten Jenny and Sylvia also tried to fight Jenny. Both were stopped by the men who were gathered there. I also accept Jenny’s explanation that due to the assaults and threats issued on her, she was walking away from the mediation arena to prevent any harm done to her. She felt unsafe and had the right to walk away from harm and fear of being hurt. Jenny was also being mindful that her presence might provoke the defendants and their relatives who were already agitated. Consequently, her walking away cannot be a provocative act. No one including Josepha had any right to stop her when she was walking away to protect herself from being harmed. The raising of provocation now is a cover up for the defendant’s intentional criminal mindset and behaviour where they were already angry and vengeful when they went to the mediation arena. Their intent was to face Jenny and hurt her. They used the mediation process to confront her. Their intent was made known even before the mediation started when they tried to assault Jenny. Josepha, Sylvia, Sylvia’s grandmother, and Sylvia’s aunties were all there ready to fight.

139. I do not find that Jenny used those words again. She could not have done that especially when she voluntarily went for the mediation and when she knew that she would be facing all of Sylvia’s relatives. She would not have used those offensive words when she had admitted by accepting responsibility for what happened on the 12^th of February 2018. Her husband who volunteered to mediate had told her to apologise and she accepted that. She therefore did not provoke the defendants by the use of any offensive words. She did not use any offensive words at the mediation arena.

140. Common sense dictates that if she had not wanted to accept responsibility for her actions on the 12^th of August 2018, she would not have gone to the mediation. Evidence showed that she willingly attended when summoned by her son Elvis and knowing full well that she would be facing Sylvia’s family.

141. The court’s findings are that the defendants used the mediation as an opportunity for them to get back at Jenny. They had intended to hurt her. They achieved their criminal intent in the pretext of calling a mediation and getting Mr Elvis Toba to summon Jenny to appear. When Jenny made the decision to leave the mediation arena because she felt unsafe, no one including Josepha or Sylvia had the right to stop her. Unfortunately for Jenny, being elderly and ganged up on, she was pursued and assaulted by both offenders. Consequently, there cannot be provocation. State had negated the elements of the defence of provocation.

142. Having found that there was no provocation, at that time when the mediation was called, there is no need to consider the issue of whether the accused acted on the provocation on the sudden and before there was time for her passion to cool. Even though Jenny had said the offensive words on the 12^th of August 2018, which could have been provocative, six days had passed which was sufficient time for their passion to cool. Both accused persons allowed their anger to build up and wanted to take vengeance. They acted together and therefore are responsible for each other’s actions.

143. There is sufficient identification evidence on involvement. There is no dispute on the nature of the grievous bodily harm, and through the medical evidence, I find that Jenny did suffer from 45% of permanent loss of visibility to her left eye.

144. I find that the State had negated the element of provocation and had proven its case beyond a reasonable doubt. I find both defendants Josepha Kengemar and Sylvia Kengemar guilty as charged on one count each of Grievous Bodily Harm, contrary to section 319 of the Criminal Code.

145. I convict both defendants accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Kengemar (No. 1) [2021] PGNC 595; N9491 (9 December 2021)