State v Pasingan [2015] PGDC 17; DC3010 (9 November 2015)

DC3010

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]

GFCr 09 of 2015

BETWEEN

ALEXANDER MAMATS
Informant

AND

ALBERT PASINGAN
Defendant

BUKA: TASIKUL, PM
2015, 21, October, 09th November.

CRIMINAL:Particular offence-Unlawful wounding-Defence of provocation and self –defence-Force use was so excessive- defendant not entitle for defence of self-defence.

CASES CITED:R V Donald (1974) N212

REFRENCES:Criminal code ss266, 267,269, 281

COUNSEL:
Appearing for the prosecution: Constable Chris Markoe
Appearing for the defence: in person

DECISION ON VERDICT

1. B.TASIKUL:Albert Pasingan of Papasa Village, Selau you pleaded not guilty to the charge of unlawful wounding of Kerana Tanapi. It was alleged that on the 28^th February, 2015 at Papasa Village, Siara. Selau constituency you did unlawfully assaulted the victim Kerana Tanapi with a knife by slashing his forehead, right shoulder, and left hand thereby unlawfully wounding him contrary to section 322 (1) of the Criminal Code.
   
2. There are two issues to be considered;
   
   1. Whether or not you unlawfully wounded the victim Karena Tanapi?
   2. Whether or not you have a defence in law?
      
3. The following facts are not in dispute. Thevictim Kerana Tanapi after been intoxicated with homebrew went to your sister residence and abuses her by asking her for sexual intercourse. He also touches her breast and buttock. You were very upset about his action. You followed him and slap him on his face while he was sitting with Cyril Hagen and others.
   
4. It is also undisputed that after you slap him, his relatives came after you at your house and argued with you.
   
5. What is disputed is that you retaliated as result of the victim Kerana Tanapi swung the spade at you and hit you on your head. The victim Kerana denied says that he never swung the spade at you. The injuries you sustained from your head were the result of Kenneth Kobus hitting you with a piece of timber.
   

Issue no 1. Whether or not you unlawfully wounded the victim Karena Tanapi?

6. The victim testified in court. By your consent, a medical report (Mark A) and record of interview (Mark B) was tendered in court.
   
7. The prosecution witness KeranaTanapi testified that after you slapped him he was unconscious. He later got up and walked home. On his way home he heard noise coming from your yard. He walked into your premises and started arguing with you. That was between 8-9 pm. Both of you confronted each other and had a heated argument. All of a sudden he felt something struck his head and shoulder. He then saw blood pouring down his head. He clearly saw you holding a knife.
   
8. Realizing that he was wounded he ran to his village; however he lost a lot of blood and felt unconscious. The next day he was taken to Buka General Hospital for medical treatment.
   
9. The medical report confirmed that the victim suffered from a knife wound on his forehead (12x2 cm),compound wound on his shoulder (12x4x3 cm) and left hand wound split the web space.(6x3x2 cm)
   
10. In the record of interview you admitted wounded the victim Karena however, you said this because he came with a group of men and wounded you on your head and in retaliation you grab a bush knife and wounded him.
    
11. Based on your admission and the prosecution’s evidence I am satisfied beyond reasonable doubt that you did wounded the victim by cutting him with a bush knife on his fore head, shoulder and left hand.
    

Issue no 2. Whether or not you have a defence?

12. You testified that you were angry for what the victim Kerana have done to your sister earlier when he went to her house.Secondly you told the court that because he came with some men at your premises and they cut you on your head in retaliation you got you knife and also cut him.
    
13. This raises two defences in law. The defence of provocation and self-defence.
    
14. Section 266 -267 of the Criminal Code Act states that;
    

1) Subject to this section, “provocation” used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done–
(a) to an ordinary person; or
(b) in the presence of an ordinary person to another person–
(i) who is under his immediate care; or
(ii) to whom he stands–

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) in the relation of master or servant,

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

267. DEFENCE OF PROVOCATION.

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he–
(a) is deprived by the provocation of the power of self-control; and
(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not–
(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
(c) any force used is disproportionate to the provocation,

is a question of fact.

15. You testified that your sister reported to you that the victim Kerana Tanapi approached herand abused her by asking her for sexual intercourse. This made you upset about his action toward your sister so you followed him to where he was drinking with a Siriel Hagen and others. You slap him on his face and you return to your house.
    
16. Yes, what the victim Kerana did to your sister was disrespectful. I say this because in our Bougainville society women are treated with respect. Your sister was a married woman and for the victim Kerana asking her for sex and physically touching her body is sexual harassment.It is customarily wrong for a man to do this to a woman whether she is married or not.
    
17. So when you followed him and slapped him on the face is lawful or justified because you could not control yourselves when your sister told you what the victim just did to her.I am satisfied that you were uncontrolled that very moment and you release your frustration when you slap him.
    
18. You testified that some minutes later the victim with a group of boys came to your house and argued with you. The victim had with him a spade which he swing at you and wounded you on your head. In retaliation you took your bush knife and cut the victim. There was conflicting evidence from both sides.The prosecution said the victim hit you on the head with a spade, whereas, the defence say that you were hit by Kenneth Robus with a pieces of timbers. I don’t know who is telling the truth.
    
19. There is no doubt that you were hit on the head as confirmed by your medical report dated 12^th June 2015.However, should I accept your medical report as part of your evidence, despite been tendered in court by consent.
    
20. Your medical report which you tendered as evidence dated 12^th June, 2015 was issued by Hantoa Health Centre. You testified that you went to Ton Aid Post for medical treatment the next day after the incident. How genuine is this medical report? Especially, after almost three (3) months.
    
21. I quote what this medical report states:
    

Albert Pasagen male of 40 years from Papasa Village-Siara was brought to Ton Aid Post on the 1^st March 2015 with the presenting history of knife wound on his head. The patient stated he sustained the injury on the 1^st march 2015 while having a fight with his drunkards’ brother in-law at around 10.00pm.While they were having the argument and fighting his brother in law suddenly cut him on his head with a Rambo knife. On clinical examination the patient was conscious but was in distress due to pain. His vital observations were pulse-80/min.respiration-18/min body temperature 37 and BP-130/70.

22. There is no examination of what injuries you sustain in this report however, there is a hand written on a blue pen a drawing of a head. There are inconsistencies with your evidence with this report. For example the report stated that you wound was a result of a Rambo knife wound while in your evidence you stated that you were hit with a spade. I would therefore reject this medical report in its totality.
    
23. The next question I ask my self is whether you acted on self-defence
    
24. Section 269 of the Criminal Code Act provides for self defence against unprovoked assault. It say;
    

"269.self –defence against unprovoked assault.

(1) When a person is unlawfully assaulted and has not provoked the assault it is lawful for him to use such force to the assailant as is reasonable necessary to make an effectual defence against the assault, the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

25. In Andrew Chalmers, Weistrot from page 287:-

"The degree of force which it is lawful for the accused to use for the purpose of self-defence is set out in R v Muratonik (1979)

"The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm"

26. Simply, what it means is that a person may use force in retaliation if he is assaulted but not to excessively. It must not cause death or serious injuries
    
27. Section 281 of the Criminal Code Act states that;

Even where the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstance is unlawful.

28. In R V Mc Donald (1947) N212the court held that the use of a sharp knife against the fist of a drunk man was excessive self defence and unlawful.
    
29. There were a lot people at that time during the confrontation. It was night and evidence suggested that there was sufficient lighting and people can see what was going on. There were also drunkards. Rommy say he saw you swing the knife and wounded the victim Kerana. He never saw the victim Kerana holding any weapon. Your witness said they saw the victim Kerana hit you with the spade and you got a knife and wounded him.
    
30. If it was true that the victim Kerana use a spade to hit you, then it is still unlawful for you to use a sharp knife to cut and wounded him. This is because you have applied excessive force in your self –defense. In applying the same principle in R. v Mc, Donald case I am satisfied that you are not entitled to any defence in law. I therefore without reasonable doubt I find you guilty for unlawful wounding of Kerana Tanapi.