The State v Nick Pinga (2010) N3852

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 04 February 2010
• Citation: (2010) N3852
• Docket Number: CR NO 689 OF 2008
• Court: National Court
• Year: 2010
• Judgement Number: N3852

Full Title: CR NO 689 OF 2008; The State v Nick Pinga (2010) N3852

National Court: Cannings J

Judgment Delivered: 4 February 2010

N3852

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 689 OF 2008

THE STATE

V

NICK PINGA

Madang: Cannings J

2010: 2, 4 February

CRIMINAL LAW – grievous bodily harm, Criminal Code, Section 319 – trial – whether the accused was the person who did grievous bodily harm to the complainant.

The accused was charged with unlawfully doing grievous bodily harm to the complainant in a gathering at the accused’s residence, during which the accused and the complainant and other persons present had been consuming alcohol. The complainant had a bottle of beer smashed over his face and has lost sight in one eye.

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, although the State proved that the complainant suffered grievous bodily harm by virtue of having a bottle of beer smashed over his face, it was not proven that the accused was the person responsible. The accused was accordingly found not guilty.

Cases cited

No cases are cited in the judgment.

TRIAL

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

Counsel

N Goodenough, for the State

A Turi, for the accused

VERDICT

4 February, 2010

1. CANNINGS J: Nick Pinga, the accused, a middle-aged East Sepik man, is charged with unlawfully doing grievous bodily harm to the complainant, Pius Mon, a Western Highlands man aged in his 20s. The offence is said to have been committed during a drinking party at the accused’s residence at Gov Stoa settlement in Madang on the night of Saturday 11 August 2007. The State alleges the accused smashed a beer bottle over the complainant’s head, causing permanent loss of sight in the left eye. The complainant was at the time a student at the nearby Divine Word University.

2. It is agreed that the complainant was badly injured on the night of the incident and that he is now permanently blind in one eye.

ISSUES

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. The offence has two elements:

· doing grievous bodily harm to another person;

· doing it unlawfully.

5. To determine whether the first element is satisfied, reference must be made to the 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. Here, it is clear that the complainant’s eye injury was permanent. A report by Dr Demok of Modilon General Hospital confirms this. He suffered grievous bodily harm. So the issue is whether the accused was the person responsible for inflicting it.

7. As for the second element, Section 244 of the Criminal Code states that all assaults (including grievous bodily harm) are unlawful unless authorised, excused or justified by law. Bodily harm can be rendered lawful if a defence such as provocation, prevention of repetition of insult or self-defence applies (see Criminal Code, Sections 267-271). The accused is not relying on any such defences. He denies assaulting the complainant in any way. The only issue to be decided is therefore whether the accused was the person responsible for the complainant’s eye injury. If he was, he will be found guilty. If not, he will be acquitted.

WAS NICK PINGA THE PERSON WHO DID GRIEVOUS BODILY HARM TO PIUS MON?

Evidence for the State

8. Two witnesses gave evidence for the State.

9. The complainant, Pius Mon, said that early in the evening he was drinking with two friends: his roommate at DWU, Jeffery Elapa, and another man called Simon. They bought 18 bottles of beer at a place near the University and started consuming them. Nick’s wife came along and invited them back to her and Nick’s place to continue drinking.

10. They went there and were sitting down drinking and listening to music. Jeffery went away to get cigarettes and when he came back Nick hit him on the face. Jeffery fell, so he (Pius) got up from where he was sitting and the next thing he knew Nick swung a bottle of beer at him. The first bottle hit him on the face and cut him a bit but bounced off. The second one smashed on his face. He lost a lot of blood and fainted and then ran off in the direction of the University. He fell at the main gate and some friends saw him and came to his aid. Guard Dog security guards radioed for help and one of their trucks came and took him to Modilon Hospital where he stayed for three weeks.

11. He suffered a big cut on his head, his face was swollen and his left eye had to be operated on. As a result he is blind in that eye, with no chance of recovery.

12. In cross-examination Pius said that Jeffery is from Tari and he is a close family friend of Nick and his wife. He said there was no argument between himself and Nick. He does not know why Nick hit Jeffery. He was surprised when he saw that. That is why he got up to see what was happening.

13. It was put to Pius that it was not Nick who struck him with the beer bottles; it couldn’t have been Nick as he had a swollen right hand at the time and he is right handed. Pius replied that he did not know which hand Nick used but it was Nick who struck him and this happened after Nick had felled Jeffery.

14. The other State witness was Jeffery Elapa, aged in his 20s. At the time of the incident he was a DWU student. He now works in Madang as a reporter for The National newspaper. He confirmed that he was drinking with Pius and his friend when Nick’s wife, Christina, came along and invited them to her place. They went to Nick and Christina’s place and sat down outside and continued drinking. After a while he went to where Christina was sitting, then Nick came over to him, asked him who he came with, then punched him. He (Jeffery) was surprised by this and then his father, Peter, came into the yard and escorted him out of the area. As he was being helped out, he looked back and saw Nick lifting his hand but he did not see what he did with it or what happened after that.

15. In cross-examination Jeffery Elapa agreed that at one stage he was sitting with Christina and another lady, Priscilla, telling stories and laughing. He did not hear Nick get cross with him for touching the women. He only heard Nick call his name and then Nick punched him. Peter was the one who rescued him. He did not see any men enter the scene other than those who were already in Nick’s yard, drinking and talking and listening to music. He did not see Nick at any time hit Pius.

16. That was the close of the State’s case.

Defence witnesses

17. There were two defence witnesses.

18. The accused, Nick Pinga, said that on the evening in question he was sitting down in his yard listening to music. Christina returned from the market and he sent her to buy a six-pack of beer at Toby’s store. He remained with his brother, Noel, in the yard and when Christina came back with the beer she was followed by Jeffery (who is a good friend of the family) and Pius and his friend. He could see that they had all been drinking previously. Priscilla came with them and she was quite drunk.

19. After a while he observed that Jeffery was sitting between Christina and Priscilla and touching them. He was not happy about that. Priscilla was a married woman and he did not want any trouble so he told Jeffery twice to go and sit elsewhere. Jeffery agreed to do that but kept going back and sitting with and touching the two women. On the third occasion, the accused said, he slapped Jeffery (with an open fist) on the side of his face and said ‘how many times do I have to tell you?’ Then Noel came in and hit Jeffery on the head with a beer bottle. At that stage he (Nick) and Christina came to Jeffery’s assistance. But then some boys who were drinking outside heard the commotion and came in and chased Pius and his friend.

20. Nick said that he did not have an argument with Pius and bore no grudge against him. He did not hear about Pius’s injury until the next day. A few weeks later he and Christina reconciled with Jeffery: they bought him a six-pack and they drank together (presumably peacefully).

21. In cross-examination the accused said that though his right hand was in a sling he was able to drink his beer and change the CDs on his hi-fi with his left hand. He admitted that he was angry with Jeffery for causing problems with the women but denied hitting Pius with a beer bottle.

22. The accused’s wife, Christina Pinga, said that it was about...