The State v Norman Kukari (2009) N3635

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 May 2009
• Citation: (2009) N3635
• Docket Number: CR NO 320 OF 2009
• Court: National Court
• Year: 2009
• Judgement Number: N3635

Full Title: CR NO 320 OF 2009; The State v Norman Kukari (2009) N3635

National Court: Cannings J

Judgment Delivered: 26 May 2009

N3635

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 320 OF 2009

THE STATE

V

NORMAN KUKARI

CANNINGS J

Bialla: Cannings J

2009: 15, 18 May

Kimbe: 26 May 2009

VERDICT

CRIMINAL LAW – grievous bodily harm with intent, Criminal Code, Section 315(b) and (d) – trial – defence of self-defence – onus of proof on defence.

The accused was charged with unlawfully and intentionally doing grievous bodily harm to the complainant, his sister-in-law, in a domestic dispute. He raised a number of defences: that she tripped and caused the injuries herself; that he acted in self-defence; that he was provoked; that he did not intend to cause her grievous bodily harm.

Held:

(1) There are three elements of the offence under Section 315(b) and (d): that the accused “did grievous bodily harm” to the complainant; that he did it “unlawfully”; and that he “intended” to do grievous bodily harm.

(2) 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”. And it must also be proven that the accused “did” such harm to the complainant.

(3) The second element is proven if there is no lawful justification or excuse for the accused’s action. Once a specific defence (eg self-defence or provocation) is raised the prosecution bears the onus of disproving it.

(4) The final element is proven by examining all the circumstances of the case and making an assessment of the accused’s state of mind.

(5) It is open to the court on an indictment for intentionally doing grievous bodily harm under Section 315 to enter an alternative verdict of guilty of a lesser offence, eg unlawfully doing grievous bodily harm under Section 319.

(6) Here, the first element was proven as the complainant suffered amongst other things a broken jaw and the accused was responsible for causing that injury.

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

(8) The third element was not proven, given that harm was inflicted in the heat of the moment in a domestic setting.

(9) 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 Bawai-Pesoi [1965-66] PNGLR 210

R v Gahoso Simbane [1975] PNGLR 254

R v Hutchings (1972) No 710

R v Kaiwor Ba [1976] PNGLR 90

R v Kambe-Pare [1965] PNGLR 321

R v Meauri [1969-1970] PNGLR 254

The State v Albert Gias (2005) N2812

The State v Alphonse Dumui CR No 14 of 2006, 08.04.09

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

TRIAL

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

Counsel

A Kupmain, for the State

R Awalua, for the accused

26 May, 2009

1. CANNINGS J: Norman Kukari, the accused, is a 29-year-old East Sepik man who lives with his family at Barema, near Bialla, West New Britain. On the evening of Saturday 16 February 2008, he was involved in an incident at Barema, with his sister-in-law, the complainant, Lynn Pokou, which has led to him being charged with the offence of unlawfully and intentionally doing grievous bodily harm to her.

2. It is alleged that the accused involved himself unnecessarily in a dispute between the complainant and his mother over a missing serving spoon. He got a piece of timber and struck the complainant in the head while she was standing on the steps of the house. He broke her jaw and she fell unconscious. She was two months pregnant and had a miscarriage.

3. The accused agrees that the complainant suffered serious injuries in the incident but claims that she caused them herself. She was so cross with his mother that she damaged the house and fell off the steps, he said. He also claimed that she swung a bushknife at him so he had to throw the timber at her in self-defence.

ELEMENTS OF THE OFFENCE

4. 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.

5. To obtain a conviction the State must prove the three elements of the offence beyond reasonable doubt:

· that the accused did grievous bodily harm to the complainant;

· unlawfully; and

· with intent to do grievous bodily harm.

6. 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.

7. The medical evidence proves that the complainant suffered a broken jaw and associated soft tissue injuries. She clearly suffered bodily injury of such a nature as to cause permanent injury to her health. She therefore suffered grievous bodily harm. However, the accused claims that he did not cause the injury. The harm was self-inflicted. So the first element of the offence is in dispute.

8. 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. An assault is, by virtue of Section 244(1), unlawful unless it is authorised, justified or excused by law.

9. 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.

10. The accused relies on self-defence (and, in the alternative, provocation). 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.

11. 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?

12. If yes, he will be found guilty as charged. If no, he can, by virtue of Section 542 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 259).

ISSUES

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

1 Did the accused do grievous bodily harm to the complainant? If no, he will be not guilty and it will be unnecessary to go any further.

2 Did the accused act in self-defence? If yes, he will be not guilty.

3 If no, did the accused intend to do grievous bodily harm to the complainant? If yes, he will be guilty as charged.

4 If he did not intend to do grievous bodily harm, should the accused be convicted of some other offence?

THE EVIDENCE

14. The State’s case was based on the following evidence:

· oral testimony of the complainant;

· a medical report;

· the accused’s record of interview.

15. For the defence, two witnesses gave sworn evidence:

· the accused; and

· the accused’s father.

The complainant’s evidence

16. Lynne Pokou said that it was about 8.30 pm. She was with her children and her sister-in-law, Norman’s wife, Baza. They were going to the store to buy kerosene. As they were going past Norman’s house his mother called out and asked where the serving spoon was as she wanted to serve the evening meal. Baza told her where it was but for some reason she got cross and swore back at her. Lyn yelled out ‘Why don’t you look for the spoon instead of swearing?’ Then Norman’s mother started swearing at Lyn, telling her that she was an adulteress and that her son has a lot of other ladies; and she also stuck her index finger up and down in the air,...