The State v Carol Peter (2011) N4299

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 May 2011
• Docket Number: CR NO 1206 of 2008
• Citation: (2011) N4299
• Court: National Court
• Year: 2011
• Judgement Number: N4299

Full Title: CR NO 1206 of 2008; The State v Carol Peter (2011) N4299

National Court: Cannings J

Judgment Delivered: 31 May 2011

N4299

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1206 OF 2008

THE STATE

V

CAROL PETER

Madang: Cannings J

2011: 4, 12, 16, 31 May

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.

The accused was charged with unlawfully doing grievous bodily harm to the complainant by striking her on the face with an agricultural instrument, causing severe pain and suffering and loss of a tooth. The accused admitted having an altercation with the complainant, as a result of which the complainant lost a tooth, but said that it was a self-inflicted injury as the complainant had pulled her (the accused’s) hand into her mouth and bit her fingers and then she (the accused) pulled her hand out of the complainant’s mouth and that this caused the tooth, which was already loose due to a pre-existing injury, to come out.

Held:

(1) There are two elements of the offence under Section 319: that the accused “did grievous bodily harm” to the complainant; and that she did it “unlawfully”.

(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: “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”.

(3) The second element is proven if there is no lawful justification or excuse for the accused’s action.

(4) It is open to the court on an indictment for doing grievous bodily harm under Section 319 to enter an alternative verdict of guilty of a lesser offence, eg unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340) and serious assault (Section 341).

(5) Here, the first element was not proven as the evidence did not show that the complainant’s injuries were as serious as claimed. Therefore the accused could not be found guilty of the offence she was charged with.

(6) However, as it was proven that she assaulted the complainant and caused her bodily harm and did so unlawfully, the accused was found guilty of assault occasioning bodily harm, contrary to Section 340 of the Criminal Code.

Cases cited

The following cases are cited in the judgment.

R v Hutchings (1972) No 710

R v Meauri [1969-1970] PNGLR 259

The State v Buka Mapusi, CR No 23 of 2008, 15.10.08

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

P Kaluwin & M Pil, for the State

B Tabai, for the accused

31 May, 2011

1. CANNINGS J: Carol Peter, the accused, is charged with unlawfully doing grievous bodily harm to the complainant, Dianne Boku, contrary to Section 319 of the Criminal Code. It is agreed that an altercation between the two occurred at the Madang Timbers Compound, Madang, where they both live, on the afternoon of Wednesday 23 January 2008. The State alleges that the accused struck the complainant’s face using heavy force with a wooden-handled agricultural implement, breaking one tooth. The accused admits that there was an altercation with the complainant, as a result of which the complainant lost a tooth, but said that it was a self-inflicted injury. She said that the complainant had pulled her (the accused’s) hand into her mouth and bit her fingers and when she (the accused) pulled her hand out of the complainant’s mouth, this caused the tooth, which was already loose due to a pre-existing injury, to come out.

EVIDENCE

2. Evidence for the State consisted of oral testimony by four witnesses and two exhibits. The first witness, Mr Leo Mabura, is Senior Dental Therapist at Modilon General Hospital. He said that the complainant came to the dental clinic on 24 January 2008, alleging that she had been assaulted with a piece of timber and a stone by a neighbour the previous day, which caused one of her upper teeth to be broken and painful. He found that two-thirds of the crown and roots of the upper right central incisor (No 21) were fractured and there were fresh soft tissue injuries. He extracted the tooth. In his opinion very strong force would have been required to cause such an injury. The nature of the injury was consistent with an object being used to cause the injury. In cross-examination he did not rule out the possibility that the injury could have been caused by a hand being pulled out of the mouth but said that the tooth would have to be already loose. The injury was more likely to have been caused by infliction of heavy force with an object.

3. The second witness was the complainant. She said that the accused became cross with her because she (the complainant) had chided a child for lying on a pawpaw tree. The accused took exception to what the complainant said to the child. They exchanged harsh words and she (the complainant) walked back to her house. The next thing she knew, the accused came at her with a wooden-handled agricultural implement (a stick-hook). The accused struck her on the face with a downward motion, causing one of her top teeth to break. This caused severe pain. Relatives of the accused also attacked her. She lost blood. One of her daughters tended to the injury and she went to the dental clinic the next day. In cross-examination she denied pulling the accused’s hand into her mouth and biting it. She also denied that her tooth was already loose due to an assault by her husband in November 2007.

4. The third witness was the complainant’s husband, Peter Boku. He said that he saw the accused strike his wife with a stick hook. The accused landed two blows, the first on the shoulder, the second on the face. He intervened and stopped the altercation. He denied in cross-examination assaulting his wife in November 2007 or at any time.

5. The final State witness was the complainant’s daughter, Pauline Boku, a grade 6 student. She said that she was present when her mother and the accused fought. She was in the area when she heard people fighting and she raced over and then saw the accused strike her mother on the face with a stick-hook. She went to her mother’s aid and washed her mouth of blood.

6. The two exhibits admitted into evidence were a medical report prepared by Mr Ambura (which was consistent with his oral testimony) and the accused’s record of interview (in which she denied causing the injury to the complainant and asserted that the injury was due to the complainant being assaulted by her husband some time previously).

7. Three witnesses gave evidence for the defence. First, the accused gave sworn evidence that she had nothing in her hand when she fought with the complainant. The fight started when she (the accused) pointed her hand at the complainant and accused her of creating a lot of problems in the compound. The complainant responded by grabbing her (the accused’s) hand and pushing it into her mouth. They struggled for a while, during which time her cousin, Pasi, rushed in and separated them. In the course of that she (the accused) was able to remove her right hand from the complainant’s mouth. This caused one of the complainant’s teeth – one that had been broken by her husband when he assaulted her in a prior incident – to be dislodged.

8. The second defence witness was George Kambing, a security guard at the Madang Timbers compound. He has worked there for more than 20 years. He is from Siassi, Morobe Province. He knows both the accused (who is from Angoram, ESP) and the complainant (who is his niece) very well. He also knows the complainant’s husband, Philip (from WNB) very well. He knows that Philip beats up the complainant every now and then as she is not a good housekeeper and incurs debts by gambling. Peter had been around to his (George’s) house in November 2007 to tell him that he had assaulted his wife as she had been big-heading, and injured her mouth.

9. The final defence witness was Anna Awai. Like the accused, she is from Angoram, ESP. She lives at Banana Block, close to the Madang Timbers Compound. She recalls that on the night of 28 November 2007 the complainant, who she knows very well, came and stayed at her place. She needed comforting as her husband had just beaten her up and broken one of her teeth. She did not see the fight between the accused and the complainant on 23 January 2008.

ISSUES

10. 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.

11. 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.

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