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State v Kowas [2025] PGNC 233; N11392 (7 July 2025)

N11392


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 274 OF 2024


THE STATE


V


SAMSON KOWAS


Waigani : Miviri J
2025 : 03rd ,04th June


CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 (a) & (d) CCA – Trial – Provocation – No Intent to – Immediate Reaction To Swearing by Victim – Question of Credibility – Whom to Believe – Undisputed Fact Victim Injured as a Result of Assault by Accused – No Credibility in Victims Account – No Reason to Cut off the Hand feeding & Sustaining Life – Prior Animosity of Victim Towards Accused – No other hypothesis reasonable – Victim Swore words likening Accused surviving on earnings of Prostitution by female Sibling – Ordinary Reasonable Man – Provoked by Indecencies Against Sister – No Control Reaction Immediate – Defence of Provocation – Raised on Balance of Probabilities – Not Negatived by State – No intent to Grievous Bodily Harm – State Case not Beyond doubt – Not Guilty – Acquitted & Discharged – Bail Money refunded forthwith.


Facts
Accused assaulted the victim with a piece of timber fracturing her pointer and index finger on her left hand. He intended to cause grievous bodily harm and did cause grievous bodily harm.


Held
Assault not denied.
No intention to.
Provoked to act
Defence made out on Balance.
Acquitted Discharged
Bail Refunded.


Cases:
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017).
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998).
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).
John Jaminan v The State [1983] PNGLR 318 (29 September 1983).
Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981).
R v Domara Saope [1967-1968] PNGLR 71.
R v Kink Abu (1970) N576.
R v Terep Komar (1972) N709.
John Jaminan v The State [1983] PNGLR 318 (29 September 1983).


Counsel:
E. Kariko & J. Tugaha, for the State
K. Watakapura, for the Defendant


VERDICT


07th July 2025.


  1. MIVIRI J: This is the verdict after trial of Samson Kowas who was charged with intent to cause grievous bodily harm and did cause grievous bodily harm upon one Naomi Kowas pursuant to section 315 (a) and (d) of the Code.
  2. It is undisputed substantially that Samson Kowas, the accused is the nephew of the complainant because he is the son of the elder brother of the husband of the complainant. And that he was resident there with them having been brought down from the village to go to school here in Port Moresby. On the 10th June 2023 at Rainbow Estate between 4.00pm and 5.00pm Naomi Kowas arrived home and started cleaning in the house. She asked some boys from the street to assist her move a fridge. They did, she thanked them and gave them some money in appreciation. They left and the accused swore at her and deliberately hit her with a piece of timber across her left hand fracturing her two fingers. She called out and her sister came running to help her. Her hand was bleeding, and the accused was standing there staring at them. They questioned him and he did not say anything. Out of fear the complainant and her sister moved to the veranda. There both called their relatives and the police for assistance. The accused locked himself in the bathroom and stayed there until the police came and got him there. They went and charged and detained him at the hohola Police Station.
  3. As for the complainant she was taken to the Pacific International Hospital that same evening and attended to. Two fingers of her left hand were fractured, and she was further referred to Brisbane for further medical treatment up until recently.
  4. Samson Kowas intended to cause grievous bodily harm to Naomi Kowas causing grievous bodily harm contravening section 315 (a) and (d) of the criminal code Act. Which section is worded as follows:

“Acts Intended to Cause Grievous Bodily Harm or Prevent Apprehension. A person who, with intent–

(a) to maim, disfigure, or disable any person; or
(b) to do some grievous bodily harm to any person; or
(c) to resist or prevent the lawful arrest or detention of any person,

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

(d) unlawfully wounding or doing a grievous bodily harm to a person;
(e) unlawfully attempting to strike a person with a projectile;
(f) unlawfully causing an explosive substance to explode;
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;
(i) puts a corrosive fluid or destructive or explosive substance in any place;
(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.


  1. What comes out immediately from the facts alleged is the intent and the motive to assault the complainant in the way described. She suffers fractured pointer and index finger of the left hand. But why would a nephew living in that house depended on for his existence here in the city, assault the very hand that is feeding him and effectively cut it off in that manner. It does not make sense for him to act as he did without any reason or cause. The State must have very clear evidence spiralled fundamentally that he intended to cause grievous bodily harm and did cause that upon the complainant. Further that the injuries are life threatening and are permanent injuries upon the complainant.
  2. In this regard the following evidence has been tendered by consent of the parties drawing out from the pretrial form that the issue at heart is provocation. And in this regard following Exhibits were marked as the evidence comprising:
  3. The tale of all this evidence is that on the 10th June 2023 Samson Kowas assaulted Naomi Kowas who sustained fractures of the left index and pointer fingers. Both were medically attended to at the pacific international hospital and referred to the Royal Brisbane Hospital where she underwent surgery with the insertion of metal plate and screws within to heal her fingers. Both have healed well except that she says she cannot grasp and grab well with those fingers. She demonstrated in court. The medical report does not detail any particulars of any permanent residual injury as a result. And examining the medical reports each individually, at the Pacific International Hospital and the Royal Brisbane hospital, there is no mention that the injuries were life threatening. There is no mention this fact necessary to hold in accordance with section 1 of the criminal code, that the injury “was bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.” Where do I find that the complainant now has a permanent injury as a result of that assault. Where is the evidence that it was likely to endanger life? How is the injury grievous in itself? Can the demonstration in court suffice to so establish?
  4. The examination of these questions reflect that the effect of this definition is that section 315 does not fit in with these hands of the State. Medical reports are scientific and confirm with the knowledge and learning there. Medical science is by itself proof independently of what the complainant asserts. Because such a professional person is not interested in whether or not the accused is guilty or not, he or she is by that school divulging an independent assessment of the extent of the injuries and what are the residual injuries resulting now permanent as a result. What doctor Klange Hosea Nemba says in the medical report attached to his affidavit, “She requires surgical treatment for her injuries. The procedure will involve insertion of metal wires into the bone of the fingers to stabilize the fracture and expedite hearing.”
  5. That is not the same as saying this is a life-threatening injury and must be attended to immediately to save her life by that treatment. It is a treatment that will expedite healing. Expediting healing does not mean bad for the injury sustained but that it will speed up ensure good healing. And this does not include that there will be residual injuries remaining permanent as a result. This is also very clear from the evidence of Doctor Janan Albahadly of the 26th June 2023. He confirms insertion of the metal piece and screws to hold the fractures in place. And of regular follow ups necessary. He does not go onto say that medically she almost died or that there are permanent injuries as a result. Which must be attended to by follow up treatments to normalize. The surgical report does not leave that despite the treatment; this will now continue despite. That is not the voice in the medical report from the Royal Brisbane hospital by doctors there who carried out the surgery. There were three in all, and each does not make that opinion in favour to move the State forward. Demonstration in court is not satisfactory, nor can it meet the criminal standard of proof. She has an interest in the favourable outcome of the proceedings leaning to her, so her demonstration cannot tie and seal she now suffers a permanent injury as a result. This is consistent with the law settled fully that, there must and ought to be independent evidence verifying the material facts relied, Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). In short, the medical evidence does not support that she has a permanent injury as a result of that assault by the accused. It is seriously and fundamentally lacking so does not advance the cause of the State against the accused further to seal the indictment. She is going a different way from the doctors; there is no consistency and that effects the credibility of her evidence seriously. She has holes within that cannot be repaired further than dismantle her case.
  6. To my mind the medical evidence leaves no plausible explanation consistent with her demonstration in court. Either one is the truth and the other is not. I hold that the medical report stands the ring of truth. She has no aftereffects residual that are grievous or life threatening. She is creating what is not there medically. And common sense and logic do not uphold upright her evidence. There are very serious unexplained inconsistencies that do not hold up her evidence. It is basis for me to reject her evidence. I rely on fact in law that any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); affirmed followed in Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Here Therefore, common sense and logic denote that the complainant has been healed by professional medical treatment leaving no residual injuries emanating. She holds no water in her contention. There is no grievous bodily injury. It means this element of the charge is not made out in favour of the Indictment laid.
  7. Having made that determination is there intent to cause the injury. It would be an uphill battle for the state finding now that there is no grievous bodily injury. Because evidence is firsthand not assumptions based on the fact that she first attended at Pacific International and then went onto Royal Brisbane. It therefore must be assumed that she suffered grievous bodily harm. By Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981) the law is clear, that there must be no other reasonable hypothesis drawn other than that fact. Here the medical evidence does not support what the victim demonstrates in court. What this does is that the Indictment cannot sustain the balance beyond all reasonable doubt that she suffered grievous bodily harm.
  8. If that is the element of the injury what is the intent against the Accused. He has relied on provocation under section 267 of the Code. He is firm that his assault was not intended to cause grievous bodily harm and that is clear now from what the court has found set out above. He assaulted but she suffered no grievous effect as a result consistent with section 315. He assaulted because he was provoked in law within the meaning of section 267: “DEFENCE OF PROVOCATION.

(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.

(2) Any question, whether or not–

(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,

is a question of fact.

  1. That he is not responsible for the offence because he was deprived off the power of self-control and acted on the sudden against the provocation given by the victim. And he acted on the sudden before there was time for his passion to cool down. And the force used is not disproportionate to the provocation, and the force used is not likely to cause grievous bodily harm, or death. In his favour is now the finding of the Court set out above, that he did not cause grievous bodily harm by the assault. He has admitted that the assault was with a 350ml Mortein full can that he hurled at her as she mopped the floor. Her left hand with the subject fingers were holding onto the mop handle and secured the hit he hurled. The injuries sustained as a result.
  2. She states the contrary that he held a 3x2 piece of timber which was 60 centimetres in length that he used against and upon her left hand as she held the mop. The two fingers were fractured as a result. She says she was merely mopping the floor when he uttered, “Witch lapun meri” and then strike her in the manner described causing the injuries. If this is the truth, the question posed is why he would do this to mother as he termed, she is the wife of his small father, small brother of his father. There must be reason sound enough for him to forget that she was responsible together with small father Fred Kowas for his upkeep in the city where he was housed to go to school. He was in the village in Mendi, and both flew him down here to put him into a school, now Don Bosco from which he has now gone onto be accepted at Idubada Technical College. Victim has not given any evidence the reason for his attack upon her. Her evidence is incomplete and lacking in this aspect and does not give credit worthy of belief. She has given a illogical account unreasonable and not worthy of belief. Particularly given that accused life was in her hands together with her husband he would not cut off that without any justified cause to prompt the reaction to assault as he did.
  3. I do not consider this light in view of the fact that he is unemployed and sustains from them. There must be a cause for and a trigger for the assault that he committed. He cannot just swear at her and then assault her with a piece of timber which has not been brought into Court by the State. It begs whether she was really assaulted with a 3x2 timber 60cm in length. Furthermore, she does not produce the 3x2 timber 60cm in length that the accused held and assaulted her. By his evidence confirmed by hers and that of Esther Pora Accused locked himself up in the bathroom. And he did so because he was pursued in retaliation attack by the male relatives of the victim. He did not want to be hurt so locked himself up in the bathroom. It means the house was all to the victim, her sister, and the male relatives. Not one of them prompted themselves to get the weapon, the 3x2 timber 60cm long for the police. It was inside the house yet not produced. So, the assertion of being assaulted with that weapon has no legs to walk into and sustain the Indictment presented. I am not convinced that she has told the truth in all its facets. She has chosen parts of her evidence that with suit her case and left that which would defeat her case. She is in this respect not a witness of the truth.
  4. I observed her demeanour in the witness box as she gave evidence. She assessed what she was going to give and what she was not going to give. And that was because she took time to answers the questions that were posed her. Sometimes her voice was low and very hard to hear from the bench. Comparably Fred Kowas is outspoken well-mannered witness. He was prompt to what was asked of the offence. His evidence was honest and leading to finding the truth. He swore that he was here to tell the truth and nothing but the truth. And that is clear from the description he made of the character both accused and the victim. This is the husband who has lived with this woman the victim for 30 years. He was telling the truth, and I have no reservations about his evidence and the way he gave his evidence having seen him in the witness box. In all material particulars he firms out what the Accused stated in defence. They go hand in hand and show very credible account of what transpired on this day there between the Accused and the victim. I find that the truth was what was told by Fred Kowas corroborating the account of the Accused. There is consistency and logic in their evidence. Because he had a little temper but was a very good boy which was the report that the school made of him. I find that he is a witness of the truth because he also gave evidence in a very forthright manner. He was not mixed in cross examination. He was firm in his answers maintaining consistency in the account of what happened to him and the victim.
  5. I accept his evidence as the truth of what happened on the 10th June 2023. What is real and credible in my view is what he has placed in defence. He, the Accused assaulted her with 350ml can of mortein after she called out obscenities to him, “Lukluk long fone you nagat hap long go na stap. Yu lukluk long fone lukim ol gutpela kan istap WhatsApp na Facebook. Papa bilong yu tu go down long lukim ol bikpela kan long hap.” She went to the kitchen still holding the mop and said, “las taim yupela salim kan bilong sister na kisim moni na kaikai long en na stap” Interpreted, have you no other place to go instead of watching the phone? You are watching vaginas on the phone on WhatsApp and Facebook. Your father also went down to see the big vaginas there. Last time you sold your sisters vagina to get money to survive.” In the Papua New Guinea ordinary Melanesian setting such if uttered in this manner would draw the reaction that is reflected in the Accused behaviour on this day at this time.
  6. He was overcome powerless by the uttering of this words. In his own evidence he did not draw much in the foregoing against himself and his small father. But he became overwhelmed with passion in the latter when she said, he sold the vagina of his biological sister got money from it and ate of it to survive. He knew K500 was given by the husband of his natural biological sister Doreen Albert. He acted as he did without thinking but drawn out to strike by these words against his biological sibling. If Filial extends to a brother-in-law and is not limited to father and son, here is a biological brother and sister, it will amount in law, R v Domara Saope [1967-1968] PNGLR 71. I have no reservation but to find that the Accused was drawn into a state of passion where he reacted to what was said by the victim. And he reacted with the mortein hurling and hitting her on the fingers whilst she was holding onto the mop and suffered the injuries depicted by the medical reports above.
  7. What the Accused did leading immediately from the swear words uttered by the victim has found footing seen by this Court in R v Kink Abu (1970) N576 where the deceased there boasted of an adulterous affair and said to her husband, you come and eat my vagina and the vaginas of your sister and when I have illicit intercourse will you eat the semen and other liquid for our intercourse.” It was held there that these words in any community European or native would in the circumstances be such as might reasonably be considered to constitute provocation. And a Papua New Guinea is an ordinary Papua New Guinea, R v Terep Komar (1972) N709. Here what the victim has uttered fits and clearly was the cause for the assault secured upon her by the accused. He was provoked and acted in the heat of that passion to deliver that blow with the mortein can on her hand injuring the fingers in the way seen by the medical and treatment following. She would not have been hit had she not uttered these words.
  8. I am not convinced in the light of this that the victim has told the truth. She has selected her evidence so that what came out was what was favourable to her cause. She cannot dispel her prior improper conduct directed at the immediate relatives of Fred Kowas. This evidence of Fred Kowas shows prior occasions corroborating the accused where victim acted in abuse towards him. She took his clothes to Murray barracks they were retrieved by Fred Kowas when he came back from Goroka from his cousin a soldier there. She poured water where he slept and forced him to wash and clean up utensils that she ate. She fought with Fred Kowas mother, brother, and sister. This is prior animosity with the accused and other immediate relatives of Fred Kowas. And it is no coincidence that she acted as she did here against the Accused on this day with the words she uttered that I set out above.
  9. I hold that common sense and logic following the law in Kandakason v The State and Waranaka v Dusava (supra) lead that the victim is not a witness of the truth. I reject her evidence as incredible not worthy of belief. She wants the Court to believe that the Accused called her a witch and then strike her on the injured fingers with a timber 3x2 and 60 centimetres long. She has not taken the pain to get this timber and give to the police when they arrived. Her sister Esther Pora has also not secured this timber to be handed to the police. She was the first person immediately at the side of the victim after the assault. Accused had run into the bathroom for his safety when confronted by the male relatives of the victim. He given had no time to deal with the weapon he used. To hid it, to conceal from the law. These relatives who arrived immediately after the assault also did not produce that timber. It is the very weapon responsible for the assault upon the complainant yet all the time that the accused was locked in the bathroom, it has not been produced. An intelligent person She is the director of the school Twinkie winky. A very educated person managing a school successfully. And it has not dawned that this is the heart of her injury and therefore in the wake of the Accused locked up in the bathroom here was opportunity that she could have used to get it. Besides if really a timber as she pointed was used in the manner she described, she would not have only two fingers injured but the rest of the fingers on her left hand injured. That has not happened.
  10. She gave evidence that was tailored to make the accused look very bad and not worthy of belief. Particularly because her behaviour was confirmed by Fred Kowas her husband who said outright that he wanted to tell the truth and nothing but the truth. He lived with her for over 30 years as husband and wife. No doubt he was fluent of her behaviour. She was manipulative, controlling and a bad person. He went onto say she was very abusive of the accused. She poured water where he usually slept on the sofa. And she loaded his clothes and belonging with him and took him to Murray Barracks where She left him with his cousin. He was in Goroka on duties and when he returned, he went to Murray barracks got him together with his clothes and belongings. And took him back to Rainbow. He told of incidents prior where the victim assaulted his mother, brother and nephew.
  11. It means the surface contacting her fingers was limited. And in my view what the accused contends does make sense. The mortein can is rounded and does not have the same area as the timbers particulars set out above. Because of the limited area because it’s shaped in a diameter, and has a circular shape, its surface could only get two fingers, pointer and the index of her left hand. I have observed her in court she is a left-handed person. And for sure there was injury as the left hand grasped the handle of the mop as she worked mopping. Against the hard surface of the mop connected with the 350ml full container of mouth, it was more than probable that the injury evidenced was affected. These are really lies that do not have any place in a court of law in favour of the State. What they do is strengthened the State case, which is the only credible version worthy of belief, John Jaminan v The State [1983] PNGLR 318 (29 September 1983). I reject the evidence of the victim for these reasons and accept the defence evidence.
  12. In the aggregate the finding and determination due in law is that the Accused is not guilty of intending to cause grievous bodily harm upon Naomi Kowas and did cause her grievous bodily harm. I find him not guilty of the indictment dated the 03rd of July 2025 charging. I acquit him and discharge him of that indictment and all commitments in law therefrom against him.
  13. I order that his bail money will be refunded forthwith.

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

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