The State v Miriam John (2009) N4128

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 11 December 2009
• Citation: (2009) N4128
• Docket Number: CR NO. 307 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N4128

Full Title: CR NO. 307 OF 2007; The State v Miriam John (2009) N4128

National Court: David J

Judgment Delivered: 11 December 2009

N4128

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 307 OF 2007

THE STATE

V

MIRIAM JOHN

Prisoner

Kundiawa: David, J

2009: 9 & 11 December

CRIMINAL LAW – sentence – grievous bodily harm – prisoner and victim are co-wives – victim assaulted when 7 months pregnant – victim delivered a premature macerated dead female baby – guilty plea – jungle justice –sentence of 5 years to be served IHL – part of sentence suspended with conditions – ss.19 and 319 Criminal Code.

Cases cited:

The State v. Smith James Ondari (1990) N867

Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported Judgment dated 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ)

The State v. Drikore Yuana Peter [2000] PNGLR 307

The State v. Kenny Reuben Irowen (2002) N2239

The State v. Namba Mako, CR. No.48 of 2007, Unreported Judgment of David, J delivered on 16 October 2007 at Mt. Hagen

The State v. John Komep, CR. 300 of 2006, Unreported Judgment of David, J delivered on 13 November 2007 at Mendi

The State -v- Vero Gul, CR No 1047 of 2005, Unreported Judgment of Makail, AJ delivered on 07 April 2008

The State v. Ali Kawa Job, CR No. 1189 of 2006, Unreported Judgment of David, J delivered on 15 December 2009,

The State v. John K. Daugl, CR No. 548 of 2006, Unreported Judgment of David, J delivered on 16 December 2009 at Kundiawa

Counsel:

T. Ai and M. Giruakonda, for the State

T. Ohuma, for the Prisoner

SENTENCE

11 December, 2009

1. DAVID, J: INTRODUCTION: On 9 December 2009, an indictment was presented against the Prisoner charging her with 1 count of unlawfully causing grievous bodily harm to one Rosa Mark at Deti Wara, Chuave, Simbu Province on 27 September 2006 contrary to s.319 of the Criminal Code. Upon reading the depositions, I was satisfied that the evidence contained therein supported the charge. I therefore accepted the Prisoner’s guilty plea and convicted her of the charge.

BRIEF FACTS

2. The Prisoner pleaded to these brief facts for the purpose of arraignment.

3. On 27 September 2006, the Prisoner was at Deti Wara, Chuave in the Simbu Province when she met the victim, Rosa Mark while she was on her way to the antenatal clinic at the Chuave Health Centre. The victim was 7 months pregnant at the time. The Prisoner approached her and punched her several times. The victim suffered serious internal injuries as a result. She was in agonising pain and was taken to the Chuave Health Centre for treatment. The pain continued and she lost a lot of blood. Subsequently, the victim was referred to the Kundiawa General Hospital where she delivered a dead premature female child.

4. The Prisoner was later arrested, charged and detained.

THE EVIDENCE

5. The depositions contain a number of documents that constitute the evidence that the State relied on to support the charge. They include the following:-

1. Affidavit of Rosa Mark sworn on 24 January 2007.

2. Affidavit of Angela Buzs sworn on 24 January 2007.

3. Affidavit of Simon Drua sworn on 8 February 2007.

4. Affidavit of Mark Daiworo sworn on 24 January 2007.

5. Medical Report dated 3 October 2006 authored by Dr. Joshua Kaman of the Kundiawa General Hospital.

6. Undated Affidavit of Doctor Joshua Kaman.

7. Confessional Statement of Miriam John recorded in Tok Pisin dated 25 October 2006.

8. Affidavit of First Constable Albert Watnawi sworn on 24 January 2007.

9. Undated Affidavit of Constable Paul Kalu.

10. Record of Interview between First Constable Albert Watnawi and Miriam John conducted in Tok Pisin at the Kundiawa Police Station on 22 November 2006.

11. Record of Interview between First Constable Albert Watnawi and Miriam John conducted at the Kundiawa Police Station on 22 November 2006, English translation.

12. Pages of Rosa Mark’s Clinic Book.

6. I briefly discuss below the evidence contained in those documents.

Affidavit of Rosa Mark

7. She is from Keu village, Chuave District. She resides with her husband, Mark Daiworo at the village. She was 7 months pregnant at the time the crime was committed. On 27 September 2006, she left the village at about 06:00 am to attend the antenatal clinic at the Chuave Health Centre. She was accompanied by 2 other pregnant mothers and a young girl from the village. Whilst walking along the main road at Yom village, she was confronted by the Prisoner. The Prisoner started throwing punches at her directed at her face and abdomen. The assault continued between Yom and Deti Wara which is about ½ a kilometer apart. Along the main road at Deti Wara, she collapsed and fell to the ground. As she was falling to the ground, the Prisoner kicked her about 7 times on her abdomen. She was assisted by one of the pregnant women namely, Angela to get up and she forced herself to walk to the Chuave Health Centre. There, she told the nurse about the assault. That afternoon, she started to bleed and felt like she was going to deliver the baby. Her husband rushed her to the Kundiawa General Hospital where she was admitted to the Labour Ward. She underwent examination and scanning which revealed that the baby had died and arrangements were then made to have the baby removed.

Affidavit of Angela Buzs

8. She is from Keu village, Chuave District. On 27 September 2006, she left her village at about 06:00 am to attend the antenatal clinic at the Chuave Health Centre. She was in the company of the victim who was also attending the antenatal clinic when they met the Prisoner at Yom, a village near Deti Wara village. She witnessed how the Prisoner confronted the victim and began assaulting her by throwing punches at her without the victim fighting back. Despite the victim’s efforts to run away for safety towards Deti Wara village, the Prisoner persisted with the assault including kicking the victim several times on the victim’s abdomen causing the victim to fall to the ground in the process. She later assisted the victim to get to the antenatal clinic at the Chuave Health Centre.

Affidavit of Simon Drua

9. He is from Keu village, Chuave District. He is a welfare officer attached to the District Services at the Chuave station. He left his house at about 07:30 am to go to work at Chuave when along the way at Deti Wara village, he saw the Prisoner and the victim who is from his village involved in an argument.

Affidavit of Mark Daiworo

10. He is the former husband of the Prisoner. He married the victim around late February or March 2006 soon after the Prisoner left. He has been accosted by the Prisoner along the road on a number of occasions and has taken from him goods purchased for his small trade store. He has also been subjected to verbal abuse by the Prisoner even to the extent of telling him that she intended assaulting the victim whenever she met her.

11. Following the assault on 27 September 2006, he took the victim to the Kundiawa General Hospital arriving at about 10:00 pm and was admitted. The victim delivered a premature dead female baby on 8 October 2006. The baby was buried at the village on 9 October 2006.

Medical Report

12. Dr. Joshua Kaman reports that the victim was into week 31 of her pregnancy when she was admitted to the Kundiawa General Hospital allegedly after being assaulted by her husband’s other wife on the flanks and abdomen. His other observations are recorded in the following terms:-

“She was admitted on the 28/09/06 with severe pain on bilateral

flanks and lower limb weakness and vaginal bleeding... Examination reveals tender abdomen and uterus with viable fetus... There is no vaginal or cervical lesion, but blood stained cervical os.... She recovered after treatment with analgesics. However per vaginal spottings (Bleed) persist and two days later there was no fetal movement. USS depict Fetal Death in utero labour was induced and she delivered a macerated female baby... She made an uneventful recovery.” (sic)

Affidavit of Doctor Joshua Kaman

13. Dr. Joshua Kaman confirms the observations he made in the Medical Report.

Confessional Statement of the Prisoner

14. The Prisoner was married to the victim’s husband before. She left the matrimonial home after her husband had assaulted her following an argument. She had been living separately and apart from her husband for some time before the incident on 27 September 2006. She assaulted the victim at a location between Yom and Deti Wara on 27 September 2006. When she met the victim, she wanted to break the victim’s mouth because the victim and her mother had previously assaulted her at their village when her mouth was broken. She hit the victim on her mouth using her hand only. Bystanders intervened and stopped her from continuing the assault.

Affidavit of First Constable Albert Watnawi

15. He is a first police constable attached to the Criminal Investigation Division, Chuave Police Station and is the investigating officer in this case. His investigation began soon after receiving a complaint from the victim’s husband, Mark Daiworo on 27 October 2006 resulting in the arrest of the Prisoner.

16. He conducted the Record of Interview between himself and the Prisoner with Constable Paul Kalu in attendance as corroborator on 22 November 2006 in the Drug Squad Office at the Kundiawa Police Station. The interview was concluded the next day...