The State v Moses Kaupa (2011) N4258

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

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

National Court: Cannings J

Judgment Delivered: 21 April 2011

VERDICT

CRIMINAL LAW—grievous bodily harm, Criminal Code, s319—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, s269.

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 s319: 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 s269(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 [1969–70] PNGLR 254; R v Paul Maren (1971) No615; 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.

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 [1969–70] PNGLR 254, The State v Mark Mondo Bassop (2010) N3921).

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