The State v Norman Kukari (2009) N3635

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

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

National Court: Cannings J

Judgment Delivered: 26 May 2009

VERDICT

CRIMINAL LAW—grievous bodily harm with intent, Criminal Code, s315(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 s315(b) and s315(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 s315 to enter an alternative verdict of guilty of a lesser offence, eg unlawfully doing grievous bodily harm under s319.

(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 s315(b) and s315(d) of the Criminal Code, but guilty of unlawfully doing grievous bodily harm, contrary to s319 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 [1975] PNGLR 90; R v Kambe–Pare [1965–66] PNGLR 321; R v Meauri [1969–70] 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.

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 s315(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 s19, 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...