The State v Ray Johnson

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 09 August 2016
• Citation: (2016) N6379
• Court: National Court
• Year: 2016
• Judgement Number: N6379

Full : CR No 461 of 2015; The State v Ray Johnson (2016) N6379

National Court: Anis AJ

Judgment Delivered: 9 August 2016

N6379

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 461 OF 2015

THE STATE

V

RAY JOHNSON

Kokopo: Anis AJ

2016: 21, 22, 25 & 26 July & 9 August

CRIMINAL LAW – accused charged with grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 - accused alleged to have cut the victim on the back of the victim's left elbow with a bush knife - accused pleaded not guilty and raised defence of self-defence under section 269 of the Criminal Code Act - credibility of witnesses considered - prosecution witnesses were drunk at the material time - consumption of homebrew which started from the previous day to the next day and time of the incident - prosecution witnesses evidence not credible or reliable - defence witnesses evidence credible - prosecution evidence established all but one of the elements for the offence of grievous bodily harm that is 'who unlawfully' - prosecution evidence insufficient to negate the defence of self-defence - defence of self defence sustained - accused acquitted of the charge of grievous bodily harm

PRACTICE AND PROCEDURE – elements of grievous bodily harm under section 319 of the Criminal Code Act discussed - definition of the term 'grievous bodily harm' under section 1 of the Criminal Code Act discussed

PRACTICE AND PROCEDURE – defence of self-defence under section 269(1) & (2) discussed

Facts

The accused allegedly cut and wounded a victim on his left arm with a bush knife. At the time of the incident, the victim and his friends were under the influence of alcohol. The victim said the accused charged at him with his bush knife for no good reason. The accused on the other hand said it was the victim and his brother who had attacked him. He said he defended himself, and in the process wounded the victim. The accused raised the defence of self-defence.

Held

1. The case law shows that the elements of grievous bodily harm may vary but not to an extent outside the confines of section 319 of the Criminal Code Chapter No 262. The two main elements are who unlawfully and does grievous bodily harm.

[Cases considered: State v. Joe Ngotgnot and Eremas Matiul (2016) N6306; State v. Elsie Wabi (2009) N3662; State v. Norman Kukari (2009) N3635; State v. Daniel Kapen (2012) N4895 and State v. Nick Pinga (2010) N3852].

2. Self-defence is a complete defence.

[Cases considered: State v. Junior Paul Paina (2014) N5819; State v. Tony Tomong (2011) N5140; State v. Moses Kaupa (2011) N4258 and State v. Sailas Aita Anjipi (2007) N4963].

3. Courts in this jurisdiction have considered influence of alcohol detrimental to a witness's judgment or capacity to for example recall an event or behave, and courts should and must continue to take greater care when deciding whether to accept evidence from witnesses who are under the influence of alcohol.

(Case referred to: Ilai Bate v. The State (2012) SC1216).

4. The accused, although not obliged to, should disclose sufficient evidence to substantiate his defence. That is, evidence to show that:

(i) he was unlawfully assaulted and he did not provoke the assault; and

(ii) he felt at that time when he was unlawfully assaulted, a reasonable apprehension of death or grievous bodily harm; and

(iii) he also believed on reasonable grounds that there was no way out for him unless he uses force(s) or take action(s) to defend himself which could either kill or cause grievous bodily harm to his alleged assailants who were the Complainant and Timothy Alee.

(Cases considered: State v. Junior Paul Paina (Supra); State v. Silas Anjipi (Supra) and State v. David Yakuye Daniel (2005) N2869).

5. The prosecution has failed to negate the defence raised pursuant to section 269 of the Criminal Code Chapter No. 262.

6. The accused was acquitted of the charge of grievous bodily harm.

Cases Cited:

CR 1142 & 1153 of 2003 - State v. Richard Liri (2007)

Ilai Bate v. The State (2012) SC1216

R v. Nikola Kristeff (1967) No 445

State v. Daniel Kapen (2012) N4895

State v. David Yakuye Daniel (2005) N2869

State v. Elsie Wabi (2009) N3662

State v. Joe Ngotgnot and Eremas Matiul (2016) N6306

State v. Junior Paul Paina (2014) N5819

State v. Moses Kaupa (2011) N4258

State v. Nick Pinga (2010) N3852

State v. Norman Kukari (2009) N3635

State v. Silas Anjipi (2007) N4963

State v. Tony Tomong (2011) N5140

Counsel:

Mr H.Toke, for the State

Ms J. Ainui, for the Accused

VERDICT

9th August, 2016

1. ANIS AJ: The State (prosecution) charged Ray Johnson (the accused) for grievous bodily harm pursuant to section 319 of the Criminal Code Act Chapter No. 262 (Criminal Code Act). The injury sustained was a deep cut to the back left elbow of one Donald Alee (the Complainant). The accused denied the charge. He also raised a defence, that is, self-defence pursuant to section 269 of Criminal Code Act.

2. The trial on verdict concluded on 26 July 2016. The Court reserved its ruling to a date to be advised.

3. This is my ruling.

BRIEF FACTS

4. Let me summarise the prosecution brief facts herein: On 16 November 2014, between 7am to 8am, the Complainant, his brother Matthew Alee, Zerren Blakes and Ellen Barcela (the group) set down under a tree near the St Martin's Primary School at Ward 13 in Rabaul. The group set there and consumed alcohol. The accused, a ward counsellor, approached them. He removed a coffee punch container from the bag of Ellen Barcela. He slapped her several times on her face. The accused then approached the Complainant with a bush knife in his hand. The Complainant took out a kitchen knife and tried to defend himself. The Complainant reversed backward and in the process, he slipped over and fell down to the ground. The accused approached the Complainant, lifted his bush knife and cut the Complainant on his left arm. The Complainant bled heavily from the knife wound. The Complainant was taken to the Nonga Based Hospital where he received treatment.

WITNESSES

5. The prosecution called in two (2) witnesses:

(i) the Complainant; and

(ii) Jerren Blakes.

6. The defence also called two (2) witnesses:

(i) the accused; and

(ii) Henry Magem.

EXHIBITS

7. The prosecution tendered these documents without objection:

Exhibit No	Description	Date
P1	ROI of Ray Johnson, Pidgin & English versions	11/12/14
P2	2 x Coloured Photographs showing knife wound	Undated
P3	Medical Report by Doctor J Nuli	20/11/14
P4	Medical Report by Doctor Darryleen Aisi	27/03/14

ISSUES

8. I set out the issues herein:

(i) Whether the wound sustained on the left arm of the Complainant constituted 'grievous bodily harm' as defined under section 1 under the Criminal Code Act;

(ii) If so, whether the defence has established its defence, that is, 'self-defence' and if so whether the prosecution has negated or disproved it beyond reasonable doubt;

(iii) Subject to the above, whether the accused should be found guilty as charged.

ADMISSION

9. I firstly refer to Exhibit P1. It is the Record of Interview (ROI) conducted on the accused on 11 December 2014. It was tendered by consent. I find the evidence properly before this Court for consideration.

10. The accused admits in the ROI that he cut the Complainant on his hand with his bush knife on the date in question. Let me read questions 31 and 32 together with their answers herein:

Q31: You saw that they were surrounding you and fighting so what did you do?

Ans: I had a basket and in it there was a bush knife so I took it out and chopped the hand of Donald when I saw that they were meaning business and will cause serious injury to me. Purposely I did it for self defence.

Q32: This is the bush knife you used to chop the hand of Donald. What will you say on this?

Ans: That's the bush knife I used (it). I brought (it) to the police station.

11. At the trial, the accused said he could not recall the moment when he actually cut the Complainant on his left arm. Despite pressed with questions on point during cross-examination, the accused maintained that he could not recall the exact moment when he cut the Complainant. The accused said he only learnt of it sometime later.

12. At this stage of my judgment, I find as a fact, that the accused had cut the Complainant on his left arm. I also find as a fact that the accused knew he cut the Complainant at that time.

LAW - GRIEVOUS BODILY HARM

13. Section 319 of the Criminal Code Act reads:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

14. I note that I have just found the accused responsible for wounding the Complainant. That of course does not relinquish the burden of proof required of the prosecution herein, that is, to prove beyond reasonable doubt that the accused had committed the offence of grievous bodily harm.

15. To begin with, let me set out the elements of the offence grievous bodily harm:

· person(1)

· who unlawfully(2)

· does grievous bodily harm(3)

· to another(4)

(Numbering is mine)

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