The State v Moses Kaupa (2011) N4258

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 April 2011
• Citation: (2011) N4258
• Docket Number: CR NO 1215 OF 2010
• Court: National Court
• Year: 2011
• Judgement Number: N4258

Full Title: CR NO 1215 OF 2010; The State v Moses Kaupa (2011) N4258

National Court: Cannings J

Judgment Delivered: 21 April 2011

N4258

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1215 OF 2010

THE STATE

V

MOSES KAUPA

Madang: Cannings J

2011: 6, 14, 18, 21 April

VERDICT

CRIMINAL LAW – grievous bodily harm, Criminal Code, Section 319 – trial – whether the accused did grievous bodily harm to the complainant – whether alternative conviction available – whether accused acted unlawfully: defence of self-defence, Criminal Code, Section 269.

The accused was charged with unlawfully doing grievous bodily harm to the complainant by throwing an empty bottle at his head, injuring him. The accused admitted throwing the bottle, but did not concede that grievous bodily harm was done and further, relied on the defence of self-defence.

Held:

(1) There are two elements of the offence under Section 319: doing grievous bodily harm to another person and doing it unlawfully.

(2) The first element was not proven as there was no medical evidence and the complainant’s evidence as to the nature and extent of his injury was vague.

(3) The State, however, proved that the complainant suffered “bodily harm”, thus an alternative conviction for assault occasioning bodily harm was available provided that it was proven that the accused assaulted the complainant and did so unlawfully.

(4) Striking the complainant with a projectile was an assault but the State failed to disprove any element of the defence of self-defence under Section 269(1) and thus failed to prove that the accused acted unlawfully. The accused was accordingly found not guilty.

Cases cited

The following cases are cited in the judgment.

R v Meauri [1969-1970] PNGLR 259

R v Paul Maren (1971) N615

The State v Alphonse Dumui (2009) N3686

The State v Maria Agua CR No 208 of 2007, 16.07.09

The State v Mark Mondo Bassop (2010) N3921

The State v Nick Pinga (2010) N3852

TRIAL

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

Counsel

M Pil, for the State

A Turi, for the accused

21 April, 2011

1. CANNINGS J: Moses Kaupa, the accused, is charged with unlawfully doing grievous bodily harm to the complainant, Eli Waima, contrary to Section 319 of the Criminal Code. It is agreed that an incident occurred outside a trade store in Baidal Road, Madang on the night of Saturday 2 May 2010. The State alleges that the accused, an off-duty security guard, smashed a bottle over the complainant’s head, which caused severe facial injuries. The accused admits throwing a bottle in the direction of the complainant, but does not concede that grievous bodily harm was done and further, relies on the defence of self-defence to say that any harm he caused was lawful.

2. At the trial the evidence for the State consisted of oral testimony by the complainant and by the police arresting officer, Sgt Ray Ban. The only exhibit admitted into evidence was a witness statement by the complainant. For the defence, the accused gave sworn evidence, as did a security guard who was on duty at the trade store and said that he saw what happened.

3. Section 319 of the Criminal Code states:

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.

4. This offence has, as explained in The State v Nick Pinga (2010) N3852, two elements:

· doing grievous bodily harm to another person; and

· doing it unlawfully.

5. If the State is unable to prove that the accused did grievous bodily harm to the complainant but can prove that he unlawfully assaulted him and caused bodily harm, an alternative conviction for the offence of unlawful assault occasioning bodily harm is, by virtue of Section 542(1) of the Criminal Code, available under Section 340(1) (R v Meauri [1969-1970] PNGLR 259, The State v Mark Mondo Bassop (2010) N3921).

6. The main issues therefore are:

1 Did the accused do grievous bodily harm to the complainant?

2 If he did not do grievous bodily harm, did he assault and harm him?

3 Did the accused act unlawfully?

1 DID THE ACCUSED DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?

7. The complainant gave sworn evidence that the accused was with two others when they confronted him and his nephew as they were trying to walk into the store. The accused put his hand in his (the complainant’s) pocket, trying to get his wallet. The complainant pushed him away and then the accused’s friends assaulted him and the accused threw an empty OP bottle (a heavy-duty glass bottle) at him with great force. The bottle smashed upon impact with his face, causing severe facial injuries and broken teeth, he said. There was no medical evidence to support this claim, however.

8. 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.

9. It is not seriously disputed that the accused caused “bodily injury” to the complainant, but was it of such a nature as to:

· endanger life? or

· be likely to endanger life? or

· cause permanent injury to health? or

· be likely to cause permanent injury to health?

10. There was a paucity of evidence on these matters. The complainant’s evidence was vague. No one else gave evidence of the injuries he suffered. There was no medical evidence (a medical report by a health extension officer at Modilon General Hospital was refused admission into evidence as the author of the report was required by the defence to be available for cross-examination but was not available). In the absence of corroboration of the complainant’s evidence, the State has failed to prove that he was done grievous bodily harm. The first element of the charge under Section 319 has not been proven. Therefore the accused cannot be convicted under that provision.

2 DID THE ACCUSED ASSAULT AND HARM THE COMPLAINANT?

11. The accused gave sworn evidence, admitting that he did throw a bottle in the general direction of the complainant, though he does not know whether it hit him and, if it did, what damage it did. The accused said that he was by himself, and had gone to the store to buy provisions for the next morning’s breakfast. As he was leaving the store, the complainant and his nephew blocked his way, bumped into him, said aggressive words to him and behaved in an aggressive manner. One of them was carrying a knife in his pocket. He had noticed that they were ‘Wabags’ (people from Enga Province) and, knowing – he said in evidence – their reputation for being violent people, he thought he was in trouble. He feared for his life. He saw an empty SP (beer) bottle lying on the ground so he picked it up and threw it hard towards the complainant and his nephew and then fled the scene.

12. From this evidence it can safely be concluded that the accused did throw a bottle hard in the direction of the complainant (whether it was an OP bottle or an SP bottle, it does not matter), that the bottle hit the complainant in the face (whether it smashed or splintered, it is not necessary to say at this stage) and that this caused the complainant facial injuries falling short of grievous bodily harm.

13. Does it follow that the accused “assaulted” the complainant and that he did him “bodily harm” (those being two of the elements of the offence under Section 340(1))?

14. “Assault” is defined by Section 243(1) of the Criminal Code:

A person who—

(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

15. The accused directly struck the complainant with a projectile (by throwing the bottle into his face) without his consent. He assaulted him.

“Bodily harm” is defined by Section 1(1) of the Criminal Code to mean:

any bodily injury that interferes with health or comfort.

16. There is clear evidence that the complainant was injured (even though the nature and extent of the injury is unclear). This would inevitably have interfered, to some extent, with his health and comfort.

17. Therefore the State has proven that the accused assaulted the complainant and that by doing so he did him bodily harm. Two of the three elements of the offence under Section 340(1) are proven. The final element is that the accused acted unlawfully.

3 DID THE ACCUSED ACT UNLAWFULLY?

18. If the accused acted in self-defence, he acted lawfully. It is a complete defence under...