The State v Mark Mondo Bassop

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 04 March 2010
• Citation: (2010) N3921
• Court: National Court
• Year: 2010
• Judgement Number: N3921

Full : CR No 705 of 2008; The State v Mark Mondo Bassop (2010) N3921

National Court: Cannings J

Judgment Delivered: 4 March 2010

N3921

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 705 OF 2008

THE STATE

V

MARK MONDO BASSOP

Madang: Cannings J

2010: 17, 18 February, 4 March

VERDICT

CRIMINAL LAW – grievous bodily harm with intent, Criminal Code, Sections 315(b) and (d) – trial – whether accused did grievous bodily harm – whether alternative conviction available – Criminal Code, Section 542 (charge involving specific result).

The accused was charged under Sections 315(b) and (d) of the Criminal Code with unlawfully and intentionally doing grievous bodily harm to the complainant. He admitted kicking and slapping her but denied inflicting any serious injury or having any intent to do so.

Held:

(1) There are three elements of the offence under Sections 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: “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. If 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 (Section 319), unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340), and serious assault (Section 341).

(6) 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 he was charged with.

(7) However, he was convicted of a lesser offence as it was proven that he assaulted the complainant and caused her bodily harm and did so unlawfully.

(8) Accordingly, 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 Alphonse Dumui CR No 14 of 2006, 08.04.09

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

The State v Norman Kukari (2009) N3635

TRIAL

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

Counsel

M Ruarri, for the State

A Turi, for the accused

4 March, 2010

1. CANNINGS J: Mark Mondo Bassop, the accused, is a 35-year-old man from Kambaramba village in the Angoram District of East Sepik Province. He lives with his family in the Wagol Fikus settlement in Madang town. There was an incident in the settlement on the afternoon of Saturday 25 August 2007 that has led to him being charged with unlawfully and intentionally doing grievous bodily harm to his aunt, the complainant, Helen Malai. He admits to kicking her once in the thigh and slapping her once on the face but denies kicking her more than once on vulnerable parts of the body, as alleged by the State. He also denies hitting her with an axe on multiple occasions and punching her to the extent that she had to spend a month in hospital, those allegations also being part of the State’s case.

ELEMENTS OF THE OFFENCE

2. 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.

3. This offence has three elements:

· the accused did grievous bodily harm to the complainant;

· unlawfully; and

· with intent to do grievous bodily harm.

(See The State v Alphonse Dumui CR No 14 of 2006, 08.04.09 and The State v Norman Kukari (2009) N3635.)

4. 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.

5. The second element raises the issue of whether the 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. There are a number of defences, which, if successful, can authorise, justify and excuse the accused’s conduct and render the bodily harm lawful. They are set out in Sections 267 to 271 of the Criminal Code, eg provocation, prevention of repetition of insult and self-defence. The accused did not formally raise any of these defences.

6. The third element concerns the accused’s state of mind: did he intend to do grievous bodily harm to the complainant?

7. If the State fails to prove all elements of the offence the accused can by virtue of Section 542 of the Criminal Code be found guilty of a lesser offence.

ISSUES

8. The major issues are:

1 Did the accused do grievous bodily harm to the complainant?

2 If he did not do her grievous bodily harm, did he assault or harm her?

3 Should the accused be convicted of some other offence?

1 DID THE ACCUSED DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?

9. Determination of this issue requires:

· a summary of evidence for the State;

· a summary of evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of defence counsel’s submissions;

· assessment of defence counsel’s submissions; and then

· final determination of the question whether the accused did grievous bodily harm to the complainant.

Evidence for the State

10. Two witnesses gave evidence for the State: the complainant and her sister. There was no other evidence – no medical evidence, no exhibits, no record of interview, no witness statements.

11. (1) The complainant, Helen Malai said that at 3.00 pm she was at her house at Wagol Fikus, in the Kambaramba compound, with her little sister. The house of the accused, Mark, is only seven metres from her house. She was sitting on a small platform when Mark attacked her with an axe and kicked her. He struck her with the blunt side of the axe on the side of her body and her back. He kicked her in the stomach and the back, a total of five times. She fell and vomited, urinated and excreted. Her sister got an ambulance and took her to the hospital where she stayed for one month. She does not know why he attacked her. She bore no grudges against him and offered him no provocation. He attacked her for no reason. He had been up all night drinking yawa. He was drunk. He had attacked her once before, in 2003.

12. In cross-examination she denied insulting Mark or swearing at him either in the morning or immediately prior to the incident. She denied knowledge of any fight earlier in the day between her brother, Thomas, and Mark. She denied that Mark had a good reason to be cross with her and that what he did was kick her, only once, on her leg and slap her on the face, once, with an open fist. She said that she was holding her child on her lap when Mark attacked her. The child fell but Mark did not hit the child with the axe. She denied that Mark’s wife, Mina, and mother, Lena, were present.

13. (2) The complainant’s sister, Lucy Piksa also lives at Wagol Fikus. She was with Helen, eating sago, when Mark approached Helen, drunk. He hit Helen with an axe three times and kicked her with his iron boots on her side, front and buttocks. She fell unconscious. She vomited, urinated and excreted. She (Lucy) washed Helen, called an ambulance and took her to hospital. She stayed for one month.

14. That was the close of the State’s case.

Defence witnesses

15. The accused gave sworn evidence and there were two other witnesses: his wife and his mother.

16. (1) The accused, Mark Mondo Bassop, said he was not up all night drinking, as claimed by the complainant. He had a few beers on Friday night, that is all. On Saturday morning he worked for the first half of the day as he had a job with Rookes Marine. He returned to the house in the afternoon with his wife, Mina, who had also been working on Saturday morning.

17. He had had an argument with Helen’s brother, Thomas, earlier in the day and Helen had taken her brother’s side and threatened him and said abusive and offensive things to him. When he (Mark) came home from work she repeated the...