State v MacKenzie and Apairi [1990] PGNC 37; N861 (11 June 1990)

Unreported National Court Decisions

N861

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOHN MACKENZIE
SYLVESTER APAIRI
MARTIN APAIRI

Vanimo

Jalina J
6-7 June 1990
11 June 1990

CRIMINAL LAW - Alternative verdicts - Assault occasioning bodily harm - Criminal Code ss 340 & 539.

On an indictment charging a person with assault occasioning bodily harm pursuant to section 340: the alternative verdict of unlawful assault pursuant to section 539(4) is not available. Such an alternative verdict is available on a charge of wilful murder, murder or manslaughter.

Verdict:

Not Guilty.

Cases Cited:

R v S.M. & Others [1973] PNGLR 304.

Counsel:

B Passingan, for the State.

A Jerewai, for the accused.

Cur adv vult

11 June 1990

JALINA J: The three accusedcharged tged that they on 11 September 1988 at Vanimo in Papua New Guinea unlawfully assaulted one Jojo Nup and did him bodily hThey have pleaded not guilty to the charge.

The State has alleged that at about 3 am 3 am on 11 September 1988 at Waraston, an argument developed when someone pulled down a fence which was put up around the dance area for a fund-raising dance. During the argument, the victim (now deceased) was standing outside the fence and the three (3) accused who were taking part in the organising of the band-playing that night came outside and found the victim (hereinafter called “Jojo”) and fought him. The accused, Martin Apairi, folded his fist and punched Jojo on his chest; the accused, Sylvester Apairi, punched Jojo in the area of the throat. When Jojo fell down, the accused, John Mackenzie, continued the assault by punching and kicking him. The State alleged that the three accused were aiding each other in the assault Jojo and that as a result of the assault he suffered injuries from which he later died.

The State has, by consent of defence counsel Mr Jerawai, tendered a record of interview conducted by Constable Joe Kuingre with each of the three (3) accused and a statement from Dr Doliente giving medical evidence of the extent of injuries and cause of death of Jojo. Martin and Sylvester Apairi have admitted in the record of interview of punching Jojo while John Mackenzie has denied.

The State also called three (3) eyewitnesses, namely Florian Sapien, Jerold Maisi and Leo Ramai. From the evidence of Florian Sapien, it can be seen that there was a dance at Waraston and at about 3 am a fight started, resulting in the Warapu people chasing people from Krisa and Ningra to where the market is. The fight was over someone pulling down the fence surrounding the dance area. When the Warapu people chased the Krisa and Ningra people, they were carrying a hurricane lamp. Upon the return of the Warapu people to the place where the dance was, it was over and no-one was there except Jojo who was standing outside the fence with Florian. The Warapu people had a torch and a Coleman lamp with them.

Then Martin Apairi flashed the torch at Jojo’s face saying that he (Jojo) was one of them - meaning that Jojo was one of those who had caused the trouble. Then Martin Apairi punched Jojo on the chest and Sylvester Apairi punched him on his throat. When he tried to get away he fell down and then cried out in language, “Mother, I want to die now”. At that time Leo came and assisted Jojo by chasing them from fighting Jojo. There were also others, about thirty (30) of them, involved in the fight. They were punching and kicking Jojo. When asked by the State Prosecutor as to what John Mackenzie was doing at the fight, Florian replied that John was fighting with Jojo and when Leo came in to assist Jojo by pushing John Mackenzie away, John turned around and fought Leo. Mackenzie denied in his record of interview that he took part in the fight. Florian agreed on cross-examination by Mr Jerewai that Mackenzie never participated in the fight with Jojo or him (Florian) but he (Mackenzie) only fought with Leo.

Jerold Maisi on the other hand confirmed Florian Sapien’s evidence as to the respective places on Jojo’s body where he was hit by Martin and Sylvester. When Jojo fell to the ground John Mackenzie and five (5) or six (6) others started kicking Jojo. Then he heard Jojo yell out, “Mother, I am dying”. Then Leo and Florian came and stopped the fight. Jojo was lying on the ground between Leo’s two feet when Leo was trying to stop the fight. Martin, John, Sylvester and six (6) other Warapu boys fought with Leo. Then he saw Jojo get up and fold his two hands in front of his chest and run away struggling from side to side. He ran towards the house they sleep in at Beivi and the fight stopped after Jojo ran away.

Jerold’s evidence conflicts with that of Florian in some material respects. It conflicts in respect of the number of people fighting Jojo. Florian said about thirty (30) people, while Jerold said the three (3) accused, plus five (5) or six (6) others. It also conflicts with Florian saying that John Mackenzie never took part in the fight with Jojo, while Jerold said that he fought Jojo. There is also a conflict between Florian’s evidence and Jerold’s evidence as to the stage when Jojo called out in his language to his mother that he was dying. Florian said Jojo called out after Sylvester punched him and he fell down and tried to get away. Then Leo came and assisted Jojo. However Jerold said that after Jojo fell down the three (3) accused and five (5) or six (6) others started kicking Jojo and then Jojo called out to his mother. Then Leo and Florian came and stopped the fight. Jerold claimed to have been standing with Jojo, Leo, Florian and others and then continued standing by himself and watching the fight because he was scared. Yet there are conflicts in his evidence and that of Florian. During the time he was giving his evidence, I observed his demeanour very carefully. At times he stopped and thought about his answers before he gave them. Although he may have been present during the fight I find Jerold Maisi to be an unreliable witness. Leo Ramai’s evidence is similar to Jerold Maisi’s evidence. Hence it conflicts with that of Florian in respect of John Mackenzie. From the analysis of the evidence before me, I find as a fact that Martin punched Jojo in the chest and Sylvester punched Jojo in the neck or throat. Due to the conflict in the evidence of the three (3) eyewitnesses I find that John Mackenzie did not participate in the fight. If he did come in later, then I have no other evidence as to the stage he came into the fight. It is not for John Mackenzie to prove his innocence but for the prosecution to establish his guilt beyond reasonable doubt. The prosecution has not satisfied me beyond reasonable doubt that he participated in the fight, let alone assault Jojo, and as such I find him not guilty of the charge. I order that his bail moneys in the sum of K150.00 be refunded to him.

Are the accused, Martin Apairi and Sylvester Apairi, guilty of the charge? Before I proceed to consider that, let me point out that they have not been charged with any offences of unlawful killing such as wilful murder, murder or manslaughter, so as to make the proof of death and the cause of death essential elements. They have been charged with a less serious offence of unlawfully assaulting Jojo Nup, thereby causing him bodily harm. Whether or not an alternative verdict of unlawful assault simpliciter is available on a charge of unlawful assault occasioning bodily harm is considered below.

It is well established law in Papua New Guinea that any assault that is not justified or excused by law is an unlawful assault. The term “bodily harm” is defined in s 1(1) of the Criminal Code to mean “any bodily injury that interferes with health or comfort”. Whether or not a bodily injury interfered with health or comfort of a person is a question of fact in the circumstances of a particular case.

Did the punch in the chest by Martin Apairi and the punch in the neck or throat by Sylvester Apairi cause any injury that interfered with health or comfort of Jojo Nup? Since Jojo Nup is dead it cannot be ascertained through direct evidence from him whether (any) one or both of those punches interfered with his health or comfort. Consequently I turn to the medical evidence from Dr Doliente.

From the statement of Dr Doliente it can be seen that when he examined Jojo’s body on 13 September 1988, the only external finding he made was of slight abrasion on the neck front, pale in appearance. No injuries were found on the chest. His internal findings were that there were no fractures, no free blood in chest cavities, presence of mild adhesions on right lungs, presence of about two (2) litres of blood in the abdominal cavity and the heart was normal. Other internal organs were normal. The spleen was ruptured in two places. The cause of death was consistent with ruptured spleen with haemorrhage. I find that the spleen may have been ruptured from the kicks and punches by the thirty or more people who took part in the fight.

There being no finding by Dr Doeliente of any injury to the chest area (the area I have found Martin Apairi to have punched Jojo), the question of whether the injury interfered with Jojo’s health or comfort does not apply. Consequently I am not satisfied beyond reasonable doubt of the guilt of the accused, Martin Apairi, for the offence charged and as such I acquit him.

With regard to Sylvester Apairi who punched Jojo in the neck or throat, there is a finding by Dr Doliente that there was a slight abrasion on the neck, pale in appearance. There is however no proof that such abrasion on the neck interfered with health or comfort. Jojo being dead he could not give evidence of whether he felt uncomfortable at the time he was punched. There is no evidence from Dr Doliente or another doctor to show that a punch creating the abrasions found by Dr Doliente could cause an interference to health or comfort of a person. Dr Doliente should have been called to give general testimony in that regard but was not called by the State.

The fact that Jojo died of a ruptured spleen when many people kicked him is not relevant for the purposes of determining the guilt of the accused, Sylvester Apairi, on the charge before me, especially in the absence of evidence of Sylvester assaulting Jojo in the part of the body where the spleen is located, and in this respect I take judicial notice of the fact that the spleen is not located in the neck area of the human body. The result is that I am also not satisfied beyond reasonable doubt of the guilt of the accused, Sylvester Apairi, and as such I acquit him.

Can the accused, Martin Apairi and Sylvester Apairi, be convicted of an alternative charge of unlawful assault? In this regard, Mr Jerewai for the accused, has submitted soon after the close of the prosecution case that there was ample evidence for me to convict the accused of unlawful assault as an alternative. There is certainly ample evidence of Martin and Sylvester assaulting Jojo. I cannot, with respect, legally return such an alternative verdict. I cannot do that as a matter of law in view of the provisions of Section 539 particularly subsection (4) of the Criminal Code, at least on the charge of unlawful assault occasioning bodily harm. If the charge had been one of wilful murder, murder or manslaughter there would be no doubt in my power to return an alternative verdict for unlawful assault pursuant to Section 539(4)(d) of the Criminal Code; see R v S.M. & Others [1973] PNGLR 304. As I have found the accused, Martin and Sylvester Apairi not guilty, I order also that bail money in the sum of K150.00 be refunded to them respectively.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Alois Jerewai, Lawyers.