The State v Alphonse Dumui

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 April 2009
• Citation: (2009) N3686
• Court: National Court
• Year: 2009
• Judgement Number: N3686

Full : CR NO 14 of 2006; The State v Alphonse Dumui (2009) N3686

National Court: Cannings J

Judgment Delivered: 8 April 2009

N3686

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 14 OF 2006

THE STATE

V

ALPHONSE DUMUI

Madang: Cannings J

2008: 8, 12, 13, 14 May, 2 September

2009: 8 April

VERDICT

CRIMINAL LAW – grievous bodily harm, with intent – trial – Criminal Code, Sections 315(b) and (d) – whether grievous bodily harm done to the complainant – whether accused acted in self-defence – whether intention to do grievous bodily harm proven – whether alternative verdict can be entered.

A man pleaded not guilty to intentionally doing grievous bodily harm to another man by shooting him with a home made spear gun. The State alleged that the complainant, though angry with the accused over a previous incident, was unarmed and did nothing to provoke the accused other than swear at him. The accused admitted shooting the complainant but said that he acted in self-defence as the complainant was attacking him with a bushknife and the incident happened in the course of a group altercation, in which his side was unarmed.

Held:

(1) The elements of the offence under Sections 315(b) and (d) of the Criminal Code are that the accused:

· did grievous bodily harm to the complainant;

· unlawfully;

· with intent to do grievous bodily harm.

(2) The first element was conceded to by the defence.

(3) The second element was proven as the State proved that the accused did not act in self-defence.

(4) The third element was not proven, given that harm was inflicted in a group fight in which both sides were armed.

(5) Accordingly, the accused was found not guilty of unlawfully doing grievous bodily harm, with intent, contrary to Sections 315(b) and (d) of the Criminal Code, but guilty of unlawfully doing grievous bodily harm, contrary to Section 319 of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Kambe-Pare [1965] PNGLR 321

R v Meauri [1969-1970] PNGLR 254

The State v Albert Gias (2005) N2812

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Lenny Banabu (2005) N2871

The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07

Dates

The events referred to in this judgment occurred in 2005 unless otherwise indicated.

TRIAL

This was the trial of an accused charged with doing grievous bodily harm, with intent.

Counsel

J Wala, for the State

D Joseph, for the accused

8 April, 2009

1. CANNINGS J: Alphonse Dumui, the accused, is a 29-year-old villager from Sepa in the Bogia District of Madang Province. He has been indicted on a charge of intentionally doing grievous bodily harm to a fellow villager, the complainant, Casper Bararang Jnr. The State alleges that on the morning of Thursday 14 April 2005 he shot the complainant in the neck with his home made spear gun, known as a ‘rubber gun’. The State alleges that the complainant and members of his family had gone to the accused’s part of the village to talk to him about some problems that had arisen in the previous two days, including an alleged assault on a female relative of the complainant by the accused. The accused did not appear so the complainant and his people waited 25 minutes, during which time the complainant shouted and swore at the accused. The accused suddenly appeared and shot the complainant, the iron rods from the rubber gun penetrating the complainant’s right neck and jaw, inflicting life-threatening injuries, it is alleged.

2. The accused pleaded not guilty. He admits shooting the complainant but says he acted in self-defence as the complainant was attacking him with a bushknife and the incident happened in the course of a group altercation, in which his side was unarmed.

THE CHARGE

3. The accused has been charged under Sections 315(b) and (d) (acts intended to cause grievous bodily harm or prevent apprehension) of the Criminal Code, which states:

A person who, with intent …

(b) to do some grievous bodily harm to any person …

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

(d) unlawfully … doing a grievous bodily harm to a person …

Penalty: Subject to Section 19, imprisonment for life.

ISSUES

4. The elements of the offence are that the accused:

· did grievous bodily harm to the complainant;

· unlawfully;

· with intent to do grievous bodily harm.

5. As to the first element, there is a definition of “grievous bodily harm” in Section 1 of the Criminal Code. It means:

any 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.

6. Casper gave evidence that the iron rods penetrated his neck and jaw, that it was very painful, and that he could not remove the iron rods himself. He was admitted to hospital with the rods still stuck in his neck. This evidence was not disputed. The medical evidence describes the injury suffered by the complainant as life threatening. He spent two weeks in Modilon Hospital. He clearly suffered bodily injury of such a nature as to endanger his life. He therefore suffered grievous bodily harm. It was done to him by the accused so the first element of the offence is proven. This is not disputed by the defence.

7. The second element raises the issue of whether grievous bodily harm was done unlawfully. Doing grievous bodily harm to another person constitutes an “assault” as defined by Section 243(1) of the Criminal Code.

8. An assault is, by virtue of Section 244(1), unlawful unless it is authorised, justified or excused by law. There are a number of possible defences, which, if successful, would authorise, justify and excuse the accused from criminal responsibility and render the bodily harm lawful. These defences, such as provocation, prevention of repetition of insult and self-defence, are set out in Sections 267 to 271 of the Criminal Code.

9. The accused relies on self-defence. He has adduced evidence in support of it, so the onus of disproving it rests with the prosecution. The second element therefore becomes whether the State has proven beyond reasonable doubt that the accused did not act in self-defence.

10. If the State cannot prove the second element, the accused will be found not guilty and it will be unnecessary to consider the third element. If, however, the second element is proven, the question of the accused’s state of mind, raised by the third element, becomes relevant. Did he intend to do grievous bodily harm to the complainant or some other person?

11. If yes, he will be found guilty as charged.

12. If no, he can, by virtue of Section 542(2) of the Criminal Code, be found guilty of a lesser offence (constituted by the first two elements) such as unlawfully doing grievous bodily harm, which is an offence under Section 319 (R v Meauri [1969-1970] PNGLR 254).

13. The three major issues that have to be decided therefore are:

(1) Did Alphonse Dumui act in self-defence?

(2) If not, did he intend to do grievous bodily harm to Casper Bararang Jnr?

(3) If he did not intend to do him grievous bodily harm, should Alphonse Dumui be convicted of some other offence?

FIRST MAJOR ISSUE: DID ALPHONSE DUMUI ACT IN SELF-DEFENCE?

Elements of the defence

14. As the accused has given evidence in support of self-defence, the onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being that:

· the accused was unlawfully assaulted; and

· the accused did not provoke the assault; and

· the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and

· the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

· the accused used such force as was necessary for his defence.

15. If the State cannot disprove at least one of those elements – ie where all of them exist – the defence of self-defence will succeed. The grievous bodily harm done to the complainant by the accused will be regarded as lawful.

16. Authorities for these principles are referred to in my decisions in The State v Albert Gias (2005) N2812, The State v Lenny Banabu (2005) N2871 and The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07 (where the defence of self-defence succeeded) and The State v David Yakuye Daniel (2005) N2869 and The State v Ephraim Ria Boa (2008) N3436 (where the defence failed).

Questions to be answered

17. I will restate the elements of the defence by posing five questions:

1 was the accused unlawfully assaulted?

2 did the accused not provoke the assault?

3 was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

4 did the accused believe on reasonable grounds that he could not otherwise preserve himself...