The State v Conney Fasean

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 May 2014
• Citation: (2014) N5596
• Court: National Court
• Year: 2014
• Judgement Number: N5596

Full : CR No 236 of 2013; The State v Conney Fasean (2014) N5596

National Court: Cannings J

Judgment Delivered: 13 May 2014

N5596

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 236 OF 2013

THE STATE

V

CONNEY FASEAN

Madang: Cannings J

2013: 22 October, 6, 20, 21 November;

2014: 13 March, 13 May

CRIMINAL LAW – grievous bodily harm, Criminal Code, Section 319 – trial – whether the accused did grievous bodily harm to the complainant – whether the defence of accident applied: Criminal Code, Section 24(1)(b); whether accused acted unlawfully: defence of provocation, Criminal Code, Section 267.

The accused was charged with unlawfully doing grievous bodily harm to the complainant contrary to Section 319 of the Criminal Code. He allegedly cut the complainant with a bushknife when the complainant tried to pull a baby child from him. The accused was the grandfather of the baby; the complainant was the baby’s father. The complainant was directly related to the accused and the accused did not agree with the relationship between the complainant and the accused’s daughter as they were close relatives. The State’s case was that the accused deliberately cut the complainant with the bushknife. The accused raised three separate defences: accident, provocation and self-defence.

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 actually entails two issues: (a) whether grievous bodily harm was done to the complainant; and (b) if yes, whether the accused did that harm to the complainant.

(3) The second element requires proof that the accused acted unlawfully. This means that the State must disprove any excusatory defences raised by the accused. If no such defences are raised or if the State is able to disprove all such defences raised, it will prove the second element as any assault (including doing grievous bodily harm) is, under Section 244(1) of the Criminal Code, unlawful unless it is authorised, justified or excused by law.

(4) Here, the first element was proven as there was sufficient medical evidence to prove that the complainant’s kneecap had been fractured in the incident. This was a severe injury, which fell within the definition of “grievous bodily harm”, which was done to the complainant by the accused.

(5) As to the second element, the State disproved the defence of accident under Section 24(1)(b) of the Criminal Code as the cutting of the deceased was a deliberate and intentional act.

(6) However, the State failed to disprove the defence of provocation under Section 267(1) of the Criminal Code, which applied in this case and authorised the accused’s doing grievous bodily harm to the complainant. This meant that the accused did not act unlawfully, that the State failed to prove the second element, that the accused had a complete defence, that the question of an alternative verdict did not arise and that it was unnecessary to consider the defence of self-defence.

(7) The accused was accordingly found not guilty and discharged.

Cases cited

The following cases are cited in the judgment.

R v Meauri [1969-1970] PNGLR 259

R v Paul Maren (1971) N615

The State v Alphonse Dumui (2009) N3686

The State v Mark Mondo Bassop (2010) N3921

The State v Nick Pinga (2010) N3852

The State v Roland Rebon (2008) N3495

TRIAL

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

Counsel

J Morog, for the State

A Meten, for the accused

13th May, 2014

1. CANNINGS J: The accused, Conney Fasean, is charged under Section 319 of the Criminal Code with unlawfully doing grievous bodily harm to the complainant, Jason Kafumbili, at Dogia settlement, Madang Province, on Saturday 22 September 2012.

2. The State’s case is based on the oral testimony of the complainant who says that the accused reacted violently when he (the complainant) went to the accused’s house to retrieve his 16-month-old baby daughter. The State also relies on a medical report showing that the complainant suffered a severe knee injury in the incident. The accused agrees that the complainant was injured during the incident but asserts that the injury was not as serious as the complainant makes it out to be. The accused also relies on three defences: accident, provocation and self-defence.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

· The complainant, aged 31 at the time of the incident, is related to the accused, aged 60 at the date of the incident.

· The complaint’s father is a cousin of the accused. The accused is therefore an uncle of the complainant.

· They are from the Maprik District, East Sepik Province, but have been living in Madang for a long time. The accused lived at Dogia. The complainant lived at Sisiak.

· In 2009 the complainant entered a relationship with the accused’s daughter Marish, aged in her 20s.

· In 2010 the complainant and Marish moved to Mt Hagen. The complainant enrolled in a welding trade course at Hagen Vocational Centre. Marish studied at Holy Trinity Teachers College. She became pregnant during the second half of 2010.

· In May 2011 Marish gave birth to a baby girl, Melija. The complainant is the biological father. The complainant and Marish were at that time living in Madang at the accused’s house.

· The accused strongly disapproved of the relationship between the complainant and Marish, regarding it as contrary to custom and incestuous.

· For the rest of 2011 the complainant lived mostly in Kimbe or Lae, doing practical training in connection with his trade course.

· In 2012 Marish went back to Mt Hagen to recommence her teaching course and the complainant returned to Madang and again moved in to the accused’s house, to help care for the child.

· At one stage the accused and his wife went to the Madang Welfare Office to discuss the issue of who should have custody of the child.

· In the first half of September 2012 the complainant went to Mt Hagen as he heard that Marish – who he regarded as his wife – had entered a relationship with another man.

· He confronted her, they argued, they had a physical confrontation, he lodged a complaint with the Police, Marish left for Madang and on 21 September 2012 he returned to Madang, intent on retrieving his child.

· Early on the morning of Saturday 22 September 2012 the complainant went to the accused’s house at Dogia. He had his cousin-brother with him.

· The accused came out of the house and argued with the complainant. A physical struggle took place and the baby was in the middle of it.

· The accused was armed with a bushknife. (The accused maintains that the complainant also had a bushknife, but that part of the evidence is contentious.)

· During the course of the struggle, the complainant was cut on his right knee.

· The complainant went to Modilon General Hospital for treatment for his injury. He was admitted to the surgery ward, two days after the incident, on 24 September 2012. But on 26 September 2012, on arrival at the operating theatre, he refused to have the planned operation.

ISSUES

4. 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.

5. This offence has, as explained in The State v Nick Pinga (2010) N3852, two elements:

1 doing grievous bodily harm to another person; and

2 doing it unlawfully.

6. 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 [1969-1970] PNGLR 259, The State v Mark Mondo Bassop (2010) N3921).

7. The issues therefore are:

1 Did the accused do grievous bodily harm to the complainant? If no, did the accused assault and cause bodily harm to the complainant?

2 Did the accused act unlawfully?

8. Before these issues are addressed it is necessary to summarise the evidence, focussing on the contentious parts of it.

THE EVIDENCE

Evidence for the State

9. One witness gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Jason Kafumbili	Age 33 at time of trial, unemployed, living at Sisiak
Evidence
The only reason he went to the accused’s house on the morning of 22 September 2012 was to retrieve his daughter – he got the child from the accused’s wife (his aunty) and gave the child to his cousin-brother, who had accompanied him, to hold – he asked his aunt to give him some clothes for the child – it was a simple request, he was not arguing with anyone, but he could see that it would not be met so he decided to leave and walked towards the road – suddenly the accused ran towards him brandishing a bushknife,...