Kafo v Omen [2008] PGDC 40; DC722 (5 February 2008)

DC722

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 64 of 2007

BETWEEN

BROWN KAFO
Informant

AND

KIRIN OMEN
Defendant

Goroka: M Gauli, PM
2008: January 31, February 05

CRIMINAL - Particular offence – Unlawful wounding – Defence of provocation, insanity or justification under the relevant provisions of the Criminal Code not raised by the defendant – Sentence.

Cases Cited:
1. Brown –v- Dunn [1894] 6R. 67 HL
2. The State –v- Ogadi Minsipa [1977] PNGLR 293
3. The State –v- Anoda [1983] PNGLR 83
4. The State –v- Simon Ganga [1994] PNGLR 323
5. R –V- Richard Hutchings (1977) N 710
6. Public Prosecutor –v- Terence Kaveku [1977] PNGLR 110
7. The State –v- Kamo Bawoi & 2 Ors N 304
8. Acting Public Prosecutor –v- Kanga Apin [1977] PNGLR 107

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person

05 January 2008

DECISION OF THE COURT

M Gauli, PM: The defendant Kirin Omen stands trial before this Court on a charge of unlawful wounding. It is alleged that on the 13 of October 2007 at Kabiufa in Goroka, the defendant unlawfully assaulted the victim Kirin Dah with a knife slashing his left elbow thereby unlawfully wounding him contrary to Section 322 (1) (a) of the Criminal Code Act, Chapter 262. This provision states and I quote:

“A person who unlawfully wounds another person - - - - is guilty of a misdemeanour”.

2. Issue

There is two issues to be considered and they are:

i. Whether or not the defendant unlawfully wounded the victim Kirin Dah.

ii. Whether or not the defendant has a defence.

3. Undisputed Facts

The following facts are not in dispute. The identity is no problem as both the victim and the defendant are first cousins. On the 13 October 2007 the defendant parked the vehicle he was driving on the side of the road leading to the victims block at Kabiufa. They are both from Gumine in the Chimbu Province. Defendant was standing beside his vehicle with a knife in his right hand. The victim walked up the defendant and commented saying “You don’t come to this area while you are drunk”. The defendant replied, “Is this your land?” The victim then walked closer to the defendant and the complainant received a cut on his left elbow from the knife the defendant was holding when the defendant swung the knife at him.

4. Disputed Facts

The complainant claims that defendant swung his right hand that he was holding the knife at the complainant first and cut his left elbow. The defendant denied this and said that it was the complainant who first threw the punch at the defendant. The defendant then raised his right hand to defend himself and in that process the complainant cut his left elbow himself with the knife the defendant was holding in his right hand. I now discuss the issue.

5. The Issue 1: “Whether or not the defendant unlawfully wounded the victim Kirin Dah”.

The prosecution witness Kirin Dah testified in Court. By consent of the defendant, the Statement of the informant Brown Kafo (EXHIBIT ‘C’) and the Record of Interview (EXHIBIT ‘D’) were tendered to Court. Defendant had no witnesses, except himself who gave evidence.

6. The evidence of the prosecution’s witness Kirin Dah is that when he approached the defendant, the defendant was holding a bottle of beer in his left hand and on his right hand he was holding a knife (bayonet type) behind him. The defendant and those who came with him were drunk and were all singing. He told the defendant not to come to that area while drunk. The defendant then replied if he (complainant) is the landowner. The complainant said: “No but you don’t come here while drunk.” The defendant insulted him by saying: “You pipia rubbish drum. I will kill you.” On hearing this the complainant stepped closer to the defendant. The defendant swung his right hand with a knife in his hand aimed at the victim’s neck. The victim ducked and at the same time raised his left hand to block off the knife. In that process the defendant cut him on his left forearm near the elbow. The defendant raised the knife to cut him again but the complainant grabbed the knife and both struggled to free the knife from the other. Defendant’s friends tackled him down and he went back to his house while the defendant drove back to Goroka town. The complainant then went to Goroka Base hospital with his wife and got medical treatment. He tendered the Medical Report (Exhibit ‘B’).

7. The Medical Report confirmed the victim suffered a knife wound on his left forearm. The wound was 10 cm wide and 6 cm deep with the chipping of ulna bone. The wound was stitched and supplied with antibiotics. The stitches were removed on 30 October 2007.

8. In the Record of Interview (EXHIBIT ‘D’) defendant said that while he was standing beside his parked vehicle, he was pealing a pineapple to eat. He held the knife in his right and the pineapple in his left hand when the complainant came and said to the defendant: “I told you not to come to the area.” The defendant laughed and said, “Is this your land?” (or words to that effect). Having said that the complainant first swung the punch at him. The defendant raised his right hand to defend himself while still holding the knife. And the complainant cut himself.

9. I considered the prosecution’s evidence as presented. I find that the prosecution has established a prima ficia case against the defendant. The defendant gave evidence on oath. Basically his evidence is as stated in the Record of Interview (EXHIBIT ‘D’). He denied swinging the knife at the complainant. During cross-examination he said that the complainant swung his right hand to punch him and he cut himself on the left elbow with the knife defendant was holding. When he was asked how come the injury was on the left elbow, the defendant said: “The complainant is a left handed man. He used his left hand to punch me. I raised my right hand to block the punch and he himself out his left elbow with the knife I was holding.”

10. In the Record of Interview the defendant never said that the complainant punched him with his left hand. He only said “he swung his hand to me” but he did not specify which hand he was referring to. The defendant never questioned the complainant during cross-examination of the complainant swinging his left hand at the defendant, to give the prosecutions witness the chance to deny or confirm that evidence while he was in the witness box. The principle in the case of Brown –v- Dunn [1894] 6 R. 67 HL which is adopted in our jurisdiction in the cases of The State –v- Ogadi Minsipa [1977] PNGLR 83 that whatever defences the defendant intends to rely on, he must disclose his defences while the prosecution’s evidence is been given. Where the defendant fails to employ with that principle in Brown –v- Dunn (above) then his evidence may not be accepted or believed – see Brown –v- Dunn, p. 70 which is applied in The State –v- Simon Ganga [1994] PNGLR 323.

11. The scar on the victim’s left forearm is still visible. The scar shows that the cut was across the forearm and not running parallel along the forearm. If the defendant’s evidence is the true situation of how the complainant sustained the injury, it would be most likely that the wound inflicted would be parallel along the forearm. The fact that the would inflicted was across the forearm, in my view, is a strong indication that the knife was swung at the complainant and the received a cut across his left forearm when the complainant raised his left arm to defendant himself. I find the evidence of the prosecution witness Kirin Dah to be the truth of the way he sustained the injury. I find the defendant’s evidence is full of inconsistencies. I am satisfied beyond reasonable doubt that he swung the knife he was holding in his right hand and inflicted the wound on the complainant’s left forearm at the elbow.

12. The Issue 2: “Whether or not the defendant has a defence”.

The action of the defendant in swinging the knife at the victim was intentional and not accidental. The victim at the time was unarmed. He was bare handed when he stepped forward towards the defendant soon after the defendant said “I will kill you.” The defendant did not act in self-defence. Even if the victim may have thrown the first punch at the defendant and the defendant retaliated in self-defence by swinging the knife at the victim in my view would amount to no defence at all. The defendant did not raise a defence of provocation. That is to say that he swung the knife and inflicted the wound because he was provoked to assault the victim. All he said was that he raised his right hand with the knife he was holding to block off the punch from the complainant. And so the defence of provocation is not applicable here.

13. The defendant’s action in swinging the knife at the victim would not be said to be authorized, justified or excused by law under the Section 32 (1) of the Criminal Code Act. There was no threat of violence towards the defendant from the victim at the time. And so the defendant’s action was not done in resistance of any threat of violence from the complainant. The swing of the knife at the material time was unjustified and unexcused in the circumstances, as his life was never in danger.

14. The prosecution witness Kirin Dah gave evidence that the defendant was drunk and he was holding the beer in his left hand at the time. The defendant denied being drunk and he denied holding a bottle of beer. He said he did have some beer on the evening of the 12 October 2007 at Okapa when the went to drop of school materials at Ofena. He denied being drunk on the day of this incident. I am satisfied that defendant was not drunk nor was he under the influence of alcohol at the time he assaulted the victim with the knife. And so I find that the defence of insanity under Section 28 of the Criminal Code Act is not available to him upon his denial of been drunk.

15. For a charge of unlawful wounding there must be evidence of the skin been severed and not just an abrasion. Abrasion is just a mere breaking or pealing of the outer skin which does not amount to unlawful wounding, see the case of R –v- Richard Hutchings (1977) N. 710. In the present case the wound was 10 cm wide and 6 cm deep as per the medical report. The magnitude of the injury is not a breaking of the outer skin but it is to be classified as a wound because it pierced into the flesh where the bone was also chipped. I am satisfied that the skin was severed when the defendant inflicted the wound with the knife. The defendant did unlawfully wounded the victim.

16. There is also evidence before this Court that there were differences between the victim and the defendant before this incident of the 13 October 2007. At one stage the defendant tried to run over the victim in a vehicle. At the same time the defendant got out of the vehicle and threatened to shoot the complainant with a gun. This has not been disputed by the defendant. At one stage the defendant ran into the coffee garden of the complainant’s neighbour while he was drunk. The complainant had warned the defendant not to drive to that area while he is drunk. It was for this very reason that on the 13 October 2007, the complainant reminded him again because the defendant was drinking beer at the time. However the defendant retaliated by assaulting the complainant with a knife and inflicted the wound. From the evidence as presented before this Court I find beyond reasonable doubt that the defendant unlawfully wounded the victim. And I find him guilty as he did not raise any of the defences under the relevant provisions provided in the Criminal Code Act.

17. Sentence

The offence of unlawful wounding carried a term of imprisonment not exceeding three years. The sentence to be imposed must have a deference effect not only on the offender but also on those who might likely to commit similar offences in the future. However each case has its own merits based on their own circumstances. In sentencing the Court must consider the prisoner’s mitigating factors. The prisoner in this case is married with four children aged between 7 to 17 years. He is employed as a driver for the Division of Education in Okapa District and earns K140.00 a fortnight. He is a first time offender. He has denied the charge thereby forcing the matter to trial. Though the prisoner is a first time offender he had previously tried to run over the same victim by a vehicle and at the same time threatened to shoot him with the gun. Where there is or are evidence of violence and threats towards the same victim by the defendant previously before the present offence which also threatens the victims life, though the wound inflicted in the present case may not be that serious, the Court would still consider the offence to be one of a serious of nature that would warrant a custodial sentence.

18. I consider the sentences imposed by the National Court in some of the reported cases on unlawful wounding. In Public Prosecutor –v- Terence Kaveku [1977] PNGLR 110 where the accused inflicted three wounds on the victim with a three feet long sharp bush knife he was sentenced to fifteen (15) months. On appeal the Supreme Court increased it to three years imprisonment. In The State –v- Kamo Bawai & 2 Ors N 304 the victim was carried off by twenty men during a dance, she was raped and killed. One of the accused, Soga Gusi was present. When he kissed the victim the victim bite his tongue and in retaliation he stabbed the victim with a knife on her thigh. Soga Gusi was sentenced to two years imprisonment. On an appeal by The Acting Public Prosecutor –v- Kanga Apin [1977] PNGLR 107 against a sentence of four months which was suspended and placed on own recognizance for two years by the National Court, where the prisoner inflicted two knife wounds, one on the neck and the other on the ear, the Supreme Court held the sentence was inadequate were the assault was more serious. However since the appeal was made six months late the appeal was dismissed. These cases have called for custodial sentence and where there are series of wounds been inflicted, the sentence seems to be severe for more serious offences of unlawful wounding.

19. In the present the defendant inflicted the wound only once. And when the victim was tackled down by the defendant’s friends, he never tried to strike the victim again with the knife even though the knife was still in his hand. The victim and the defendant are first cousins. Defendant is employed and he had a family to care for where some of his children are attending school. Having taken all these factors into account I consider that a suspended sentence is appropriate in the circumstance.

20. And I convict the defendant and sentence him to 12 months imprisonment in hard labour. The whole of the sentence is suspended and the defendant is placed on his own recognizance to keep the peace and be of a good behaviour for a period of two years towards the victim Kirin Dah and his family. And I further make an order that the defendant pay a compensation in the sum of K500.00 to the victim for the injury he suffered. The compensation is payable within the period of ten months from the date of this order. Defendants bail to be refunded.

21. Verdict: Guilty and sentenced.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person