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State v Aitsi [2024] PGNC 388; N11059 (24 October 2024)

N11059

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 634 OF 2022

THE STATE

V

CHRIS AITSI

Waigani: Miviri J
2024 : 22^nd & 24^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Trial – Bush Knife & Kitchen Knife – Cut to Right Knee & Abdomen – Whether in Self Defence – No Evidence – Defence Incredible No Merit – Guilty of GBH Section 319 – Bail Refunded Remanded for Sentence.

Facts

Accused cut the victim with a bush knife on the right knee and the stomach. He was rushed to the hospital treated and survived.

Held

Whether acted in Self Defence.
No Evidence No merit.
Defence Case not made out.
Life threatening injuries to right knee and abdomen.
Heavy bleeding to right knee.
Guilty of GBH.
Bail Refunded.
Remanded to await sentence.

Cases Cited:
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017)
Balbal v State [2007] PGSC 16; SC860 (22 February 2007)
John Jaminan v The State [1983] PNGLR 318
Tapea Kwapena v The State [1978] PNGLR 316
Beraro v The State [1988-89] PNGLR 562
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998)
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009)

Counsel:
T. Kukon & T Aihi, for the State
K. Watakapura, for the Defendant

VERDICT

24^th October 2024

1. MIVIRI J: This is the verdict after trial of Chris Aitsi of Rapa village, Central Province of causing grievous bodily harm upon Adrian Aisa contrary to section 319 of the Code.
   
2. He was indicted of Grievous Bodily Harm pursuant to Section 319 of the Code which is in the following:
   

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

Penalty: Imprisonment for a term not exceeding seven years.”

3. Grievous means that it is life threatening injury or that there will be permanent injury, section 1 Interpretations Criminal Code. It is undisputed that Adrian Aisa was cut with a bush knife on is right Knee on the night of 15^th April 2021 between 07.30pm and 8.30pm at Section 228, Allotment 100 Dikagari Road Tokarara. His injuries are clearly established by Exhibit P9 Medical report dated the 19th April 2021 under hand of one Doctor Tau Nanu from the Paradise Private Hospital dated 19^th April 2021. The report details that “Adrian Aisa male 37 years old was rushed to the outpatient department on the 15^th April 2024 at 9.55pm with Knife wounds to his right knee Joint and lower abdomen. The victim was ambushed by the attacker using a bush knife while sleeping in his room.
   
4. On Examination, he was alert and conscious, bleeding heavily from the laceration at his right knee. The laceration on knee joint (medial aspect) measured about (8 cm by 2 cm). The knee ligaments and tendons were intact. The laceration on his lower abdomen below the umbilicus was about (2 by 2) cm in length and depth. No perforation of abdominal contents seen.
   
5. Both of his wounds were examined and washed with normal saline. Under sterile conditions and local anaesthesia with lignocaine 2% injection, they were stitched and dressed accordingly. He was also given Tetanus toxoid 0.5mg injection stat and Benzyl Penicillin 1200mg injection stat. He was then discharged with oral antibiotics and pain killers to continue for the next 7 days and return after 7 days for removal of stitch.
   
6. The nature of injuries sustained from this orderl is very serious and the victim could have succumbed to other serious medical complications especially when his abdominal laceration penetrated any of his internal vital organs including the lungs and heart.
   
7. Kindly assist him to take the perpetrator to face full force of the law and be charged for his criminal actions.”
   
8. This is independent confirmation of the injuries that were sustained by Adrian Aisa. Doctor Tau Nauna Registered Medical Officer of the Paradise Private hospital is not a relative of Adrian Aisa. He is a trained medical professional doing what his profession requires him to do when Adrian Aisa was presented rushed to the outpatient department of that hospital. He takes the history of as the patient was ambushed by the attacker using the bush knife while sleeping in his room. He notes that he was “bleeding heavily from the laceration at his right knee.” And it is very serious, and the victim could have succumbed to other serious medical complications especially the abdominal laceration penetrated any of his vital organs including the lungs and heart. And this fact is summed by the fact that the patient was rushed to the outpatient department on 15^th April 2021. Why else could a patient be rushed to the hospital. He obviously as the Doctor observed had injuries that were life threatening and could have easily led to other medical complications. It is a grievous bodily injury and is life-threatening injury so makes out the Indictment in favour of the State.
   
9. In my view this is independent corroboration of the account of Adrian Aisa establishing the truth and veracity of what he has stated. This evidence is not on the same footing as that of any other evidence in the case. It sets out the version that is the truth in the case. Because it is not interested in an outcome in favour of Adrian Aisa, or Chris Aitsi. What is dictated is that this is a medical personal who has attended to a patient who was rushed for his care and attention. His school and profession lead him to make the assessment and the treatment that follows suit upon Adrian Aisa. It is material evidence that independently confirms the contention of the State: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). It is good law and makes sense and is observed also in cases of sexual cases: Balbal v State [2007] PGSC 16; SC860 (22 February 2007). It will not be erroneous to follow here. Because it sets out the truth independently in the matter. I will follow accordingly. That being the truth.
   
10. It must also be observed that Adrian Aisa was sober on that night. He was not affected by alcohol in any form or content. Comparatively his assessment and observations would be more reliable than of Chris Aitsi who was drunk, who was effectively under glasses of Blueberry that he had consumed earlier on. It is the root of his coming to the door of Adrian Aisa raising his voice that is heard by his wife Therese Aisa upstairs prompting her to go down. It is the stamina and strength that drives the accused to punch the wall of the house breaking the fibro wall. So, his demeanour and veracity would be affected by that fact. And this is where the medical evidence that I have set out above come out, demarcating what is the truth, from that which is not. Here therefore the question underlying, how did Adrian Aisa get these injuries, one to his right knee that was bleeding heavily and the abdominal as seen by the doctor. It is not the same for the contention of Chris Aitsi that he was injured in the face. There is no medical evidence to advance that contention in his favour. This evidence in my view advances the States contention more than that of the Accused.
    
11. The State alleged on arraignment are that on that day at that place, Adrian Aisa was living downstairs in that house. And Chris Aitsi was drunk and armed with a bush knife and a kitchen knife. He was making loud noises upstairs and Adrian Aisa sent his two sons to see what was happening. When the accused saw them upstairs, he chased them with the bush knife. And Adrian Aisa asked him why he chased both his sons with the bush knife. To which Accused replied. I will kill you tonight and I will show you that I am the king mafia of Tokarara and June Valley. After he threatened the complainant, he slashed the right knee of the complainant with that bush knife. And again, he cut him on his lower abdomen below the belly button with his kitchen knife as the complainant tried to remove the bush knife from him. The complainant was bleeding heavily from the injuries. These injuries are both depicted out in Exhibit P7 (1) to (8) photographs of the injuries taken by wife of the complainant on the mobile phone.
    
12. Two of his elder brothers came and took him to Paradise Private Hospital where he was treated for the injuries. The findings of the Doctor at the initial examination were laceration on the right knee joint measuring 8cm by 2cm and laceration on the lower abdomen below the umbilicus measuring 2cm by 2cm in length and breath. Chris Aitsi cut Adria Aisa and intended to do him grievous bodily harm when he cut him in this manner.
    
13. The State called Adrian Aisa on oath whose evidence materially is what the state set out in the allegation set out above. It is logical consistent account of what happened on that day. He was not shaken in the cross examination. His evidence was intact. He is a witness of the truth. In my view coupled with the observation that I have made in the preliminary set out above; I do not have any reservations against his credibility. He is fundamentally a witness of the truth. And a very confident and articulate witness, an intelligent witness who logically told what happened to him on that night in the hands of Chris Aitsi his brother-in-law. His evidence affirms the allegation set out on arraignment in detail. He did not look for answers or words to describe what happened to him. It was a natural consequence as he saw it unfold on that day. His account is supported independently by the medical report that I have set out above. He truthfully recounted that after he was injured by the accused, he reacted as he did kick the TV screen of his sister and damage it as a result. That was an admission of honesty and maintained his integrity as a witness of the truth. He did not hide that which was against him as a witness. It was an immediate reaction to the injuries that were sustained by him from the hands of the Accused. I do not believe, nor do I hold that he was the instigator of the matter. In my view he was the recipient of the violence at the hands of Chris Aitsi. And his demeanour was unshaken and remained intact without any dent.
    
14. Chris Aitsi denied the allegations contending that he was acting in self-defence. That Adrian Aisa was the assailant, and he merely defended himself. He does not know how Adrian Aisa was injured in the right knee and the abdomen near the umbilical. Because he was not armed. It was Adrian Aisa who was armed with a knife and the brick. Together with wife Therese Aisa both maintained that Adrian Aisa had come out from his back door went up to the upstairs of the house where both lived. There he had used the brick and broke the 42-inch TV that belonged to them. Coming down he smashed the light that lit up the steps down so that he was in the dark. And when Chris Aitsi came up, he jumped at him with the brick hitting him in the face on the left side of the eye and facial area. And both wrestled over the knife with Chris Aitsi demonstrating how he twisted the hands of Adrian to free himself of the knife. He himself did not have any bush knife or a small kitchen knife. So, he did not cut and injure Adrian Aisa. He wanted to talk to Adrian Aisa as to why he had cut down (12) twelve betel nut trees that he had planted near his house. He did not do that when he saw it. When he was sober, but when he had consumed glasses of blue berry alcohol. When his thinking logic and common sense was effectively guised by alcohol.
    
15. Chris Aitsi has maintained this evidence in Exhibit P8 the record of interview that he conducted with Police Arresting officer’s Gilford Avenoma statement exhibit P7, corroborating officer Detective First Constable Lazarus Ikamata Exhibit P6, on the 05^th July 2021. He explained that in his endeavour to get the knife off Adrian Aisa it caused the stab to the abdomen of Adrian. He was trying to disarm him not stab him with it. But he does not offer any explanation for the cut to the right knee. In this regard Therese Aisa, his wife also does not offer any explanation for the cut to the right knee sustained by Adrian Aisa. This is cut that must be affected by Adrian Aisa bending down to cut himself if the knife is that which was seen both by Accused and his wife. If it is a bush knife Adrian Aisa did not have one at the time that he and Chris Aitsi were seen on the ground by the wife Therese Aisa. Here too Chris Aitsi if he was hit with a brick in the left side of his face by Adrian Aisa in the manner he and his wife described, would he still struggle with him after being hit in that manner.
    
16. Given that a brick is a very hard object and used in the manner that both Accused, and wife describe, the Accused would be seriously injured. Both accused and wife agreed when asked by the Court. And that Chris Aitsi would not be in court now from that injury. He would have an eyebrow smashed and the skull immediate fractured. And he would have a medical report that would depict that injury and its extent. Because he would be admitted saving his life. Such a hit would also cause injury to the brain. He does not bear scars or remnants of that injury on his face and head. Because both their descriptions on oath showed that, Adrian Aisa was hiding in the dark and jumped at the accused as he came upon him with that brick. Chris Aitsi says it landed on his left side of the face with the left eye. So too his wife Therese Aisa. But he was never taken to hospital when the twins arrived to take Adrian Aisa to the hospital. Nor was it insisted that he should also be taken to the hospital as he too was seriously injured. He was not rushed because of that injury. His evidence in this regard is self-serving without any independent confirmation of the assertions he makes. His wife Therese Aisa is not an independent witness. She is more inclined to give evidence in his favour. That is what I have found from her evidence. Particularly with the observations that I set out above. A husband who has been seriously injured in the presence of his wife will not be ignored where the twin brothers of the wife have come to take another Sibling Adrian Aisa to the hospital. Naturally they would take their brother-in-law also, husband of their sister. That did not happen because he was not injured as he painted out to be with his wife.
    
17. It is evidence that is without any legs and cannot stand in favour of the case of the accused. The aggregate of all is that both husband, Accused Chris Aitsi, and wife Therese Aisa, have deliberately and calculatedly lied. And these lies have been concocted with a conscious sense to help the husband the accused out of the realm of the law. And in this regard consistent with the law in John Jaminan v The State [1983] PNGLR 318, that has amounted to corroboration of the account of the Prosecution case. And particulars of this assertion can be found both asserting that Adrian Aisa was the assailant. And the accused husband was merely trying to defend himself. This is not putting section 270 of the Criminal Code fitting into the evidence both have given. Because the evidence does not disclose that Chris Aitsi has been unlawfully assaulted by Adrian Aisa. And he is simply reacting to save himself because he fears that it may cause death or grievous bodily harm to him. He acts to save and to preserve himself from death and grievous bodily harm. That is not the evidence from all set out above. Section 270 self defence against provoked assault is not applicable in the case of Chris Aitsi. Because the evidence here is that Chris Aitsi started the assault upon the Adrian Aisa so by section 270 (2) (a) (i) (ii) (b) he does not secure section 270 in his favour. It is appropriate to set out section 270 of the Code.
    
18. Section 270 Self Defence Against Provoked Assault: -
    

“(1) Subject to Subsection (2), when–

(a) a person has unlawfully assaulted another person, or has provoked an assault from another person; and

(b) the other person assaults him with such violence as–

(i) to cause reasonable apprehension of death or grievous bodily harm; and
(ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.

(2) The protection provided by Subsection (1) does not apply–

(a) where the person using force that causes death or grievous bodily harm–

(i) first began the assault with intent to kill or to do grievous bodily harm to some person; or

(ii) endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or

(b) unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

19. The evidence does not lay out what is seen in Tapea Kwapena v The State [1978] PNGLR 316. Adrian Aisa is not armed with a menacing or deadly weapon aimed at Chris Aitsi so that he reacts in the way that he does to secure the injuries sustained by the former. That is not the facts and the evidence here. I am not hearing evidence from a child who is 4 years 3 months old. Here are grown adults who deliberately lied under oath in their evidence urging to disassociate accused from the allegations by the State. And to align to urge the Accused be freed from the allegation now levelled. And particularly to disassociate the accused by the evidence of his wife from the net of criminal responsibility for the grievous bodily harm of Adrian Aisa. All defence witness are not witnesses likened to Beraro v The State [1988-89] PNGLR 562 where the eyewitness was a child. I therefore reject the evidence of Chris Aitsi and his wife Therese Aisa.
    
20. Common sense denotes that there will be injuries because of the attack upon the accused by the complainant. It is logically that the accused must have some injuries consistent with the fact that he was defending himself from the Complainant. This itself is a very serious unexplained inconsistency in the evidence. Because it does not accord with logic and common sense. And as such they will be rejected: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); and also, Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Chris Aitsi’s defence therefore falls by the wayside. What remains is now the evidence that the State has led. Which I set out above. And which I take as the truth here.
    
21. I take exhibit P1 statement of Margaret C Aisa dated 30^th June 2021, exhibit P2 statement of Paul A Aisa also dated same, Exhibit P3 Statement of Mathew Aisa also dated also same, exhibit P4 also dated same, Exhibit P5 letter written by Therese Aisa regarding the character of Adrian Aisa, all in my view show character evidence that do not derail or exonerate the role of the Accused in this allegation. It is explicit that the accused has a history of character not conducive to order and lawfulness amongst his family. He is a violent person and prone to violence depicted by the family, his family. It is relevant material to be considered with all before me.
    
22. In the aggregate there is only one conclusion open on all that is that Chris Aitsi of Rapa village, Kairuku, Central Province is guilty of unlawfully causing grievous bodily harm upon Adrian Aisa on the 15^th April 2021 at Tokarara National Capital District contrary to section 319 of the Criminal Code.
    
23. I find him guilty and return that verdict on the Indictment dated the 22^nd October 2023 against him. I order that his bail moneys will be refunded forthwith, and he will be remanded in custody to await sentence.
    

Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant