State v Yapriha [1997] PGNC 164; N1741 (16 December 1997)

Unreported National Court Decisions

N1741

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 641 OF 1997
THE STATE
V
ROSE YAPRIHA

Vanimo

Bidar AJ
9 December 1997
16 December 1997

CRIMINAL LAW - Unlawful Assault - Grievous Bodily Harm - Self defence - Onus of proof - Criminal Code ss. 319, 270, 271. Constitution - sch. 2.2

Trial

Rose Yapriha is charged on indictment that on 28th December 1996 at Vanimo she unlawfully assaulted one, Doreen Yapriha doing her grievous bodily harm. All relevant facts appear in the reasons for Judgement.

Cases Cited

Woolmington -v- Director of Public Prosecutions [1935] A.C. 462

Chan Kau -v- The Queen [1954] UKPC 40; [1955] A.C. 206

R -v- Howe [1958] HCA 38; [1958] 100 C.L.R. 448

R -v- David Daure [1967 - 68] PNGLR 19

Counsel

M Ruarri for the State

P Tusais for the Accused

JUDGEMENT

16 December 1997

BIDAR AJ: The accused, ROSE YAPRIHA, is before this Court upon an indictment that on 28 December 1996 she unlawfully did grievous bodily harm to one, DOREEN YAPRIHA, an offence pursuant to s. 319 of the Criminal Code Act (Ch. No. 262).

Upon arraignment accused admitted to cutting the victim with a bush-knife on her left wrist and inflicting a serious wound.

Mr Tusais of Counsel for the accused sought and was granted leave under s. 563 of the Code to enter a plea of not guilty on behalf of the accused.

State’s case consist of oral sworn evidence of Doreen Yapriha whom the state alleges was unlawfully assaulted. Record of interview, statement by one other witness and medical report all admitted by consent.

Doreen Yapriha and accused Rose Yapriha have a common husband Seth Yapriha. Doreen and Seth Yapriha are originally from Green River area, Sandaun Province while, Rose Yapriha comes from Wewak, East Sepik Province. They all live together in one house. Tragedy struck the family, when, on 28 December 1996, Seth Yapriha, broke the news of death of Doreen’s nephew back in the village. On hearing this, her heart was broken, she cried, was upset and angry at her elder sister and her husband Seth. She said some words in her language which were basically directed to her elder sister and mother of deceased nephew. She also spoke in pidgin language directed to her husband who was by then down-stairs with accused and children preparing breakfast. The words she directed to her husband Seth were to the effect that, he enjoys using her body only and does not make it possible for her to go home and perhaps see the nephew’s grave. As there was certain bad words or foul language used at her husband, the accused joined in and shouted at Doreen who was still up in the house.

It is clear that Doreen had not sworn at or used any bad words to the accused personally. Her remarks were directed to their husband Seth. Basically her message to their husband was that Seth should have got her an air-line ticket to go home to see her nephew or least his grave. Doreen kept telling accused her remarks had nothing to do with her but the accused kept on calling up to her and making various remarks. Doreen who was in a state of sorrow and grief over the death of her nephew and angry with her husband picked up a flower pot from the house and threw it down on the ground. She then came down from the house and confronted the accused and pointed finger at her and told her it was none of her business. Accused then struck Doreen allegedly with a kitchen knife and she fell down. According to her, accused after striking her down, used a stone twice on her and she (Doreen) used the same stone to strike accused once on her head. It was then, that Seth came in between the two women and separated them and stopped them from fighting. The fight was effectively stopped. Accused went away picked up her baby, and went up to the house. She returned armed with a bush-knife. Doreen was surprised when accused swung bush-knife at her. She swung the knife twice. Doreen then picked up a piece of timber quite long and heavy in an attempt to fend the knife off accused hand, but accused moved in while still holding her baby in one hand swung the knife third time which landed on accused left wrist inflicting a 6 cm incise wound cutting superficial blood vessels, tendon and bone. There was no further engagement after that and the victim was taken to hospital and admitted. The relationship between the two women has not been harmonious one. They have had fights previously and at one time accused was the victim of stabbing by Doreen. In that instance Doreen was indicted before this Court. In this case Doreen is the victim of the assault by accused. Their common husband Seth, it seems to me does not have any control over them. I am inclined to think that, one day, something terrible might happen to one of them. In polygamous marriages as this, husband should be responsible to instil discipline and control of his wives.

Medical evidence and statement by witness Oseah Taro confirm the injuries Doreen received. There is no doubt she received injuries the Doctor described. There is no doubt in my mind that State has established that it was grievous bodily harm within the meaning of s. 319 of the Code.

Defence on the other hand does not deny assault which did grievous bodily harm to the victim. Accused admits that when she heard Doreen use bad or insulting language to their husband she became angry and responded by shouting at Doreen and told her among other things that, she uses bad words and she is pregnant again. According to accused, Doreen threw flower pot at her and the children and the soil from the pot spilt over their breakfast. She denies striking Doreen with the kitchen knife, when she pointed finger at her. She in fact, slapped Doreen who fell down. She got up used a stone and struck accused once on her head. It was then that accused used small kitchen knife to stab her on her back. She also used a stone to strike Doreen as she was going for a piece of timber. At this stage their husband Seth went in between them and stopped them from further engagement. Effectively, the confrontation ceased. Accused picked up her baby from the bed and went up to the house. Moments later, she returned armed with a bush-knife. Her reason for arming herself with the bush-knife was to defend herself, in the event that Doreen used an object at her. She was not very angry or furious, but became angered when Doreen used bad words at Seth and threw flower pot down. She does not deny using bush-knife at Doreen but it was to fend off the piece of timber Doreen used to strike her with. According to accused Doreen did strike her once with a piece of timber on her shoulder, the force of which, made her sit on the bed. She denies receiving any injuries.

Generally, the facts are not disputed. The only issue is whether or not the accused actions are justified or excused under ss 270 and 271 of the Code. Mr Tusais, Counsel for the accused raised defence of self defence and aiding in self-defence.

“s270(1) &ـʔ S60; Subjectbject to subsection (2) when:

(a) &ـ a persoperson has has unlawfully assaulted another person, or has provoked an assault from another persod

b)҈ &#16e other pers person assn assaults him with such violence as:

i.&p>i. #160; ҈ ; u60 rabe rable apprehensihension of death or grievous bodily harm; and

ii. ¦&#1o inducinduce him him to bel on rable ds th is necessary for his preserveservationation from from deat death or grievous bodily harm to use force in self defence.

the fientioersonot criminallinally resy responsiponsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.

(2) &#1he protection provided bded by subsection (1) does not apply:

(a) ;ټ where tere the pere person using force that causes death or grievous bodily harm:

i. &##160;;ټ first began ega assault wilt with intent to kill or to do grievous bodily harm to some some pers person; or

ii. &##160;; ended ur kilo or t or to do grievous bodily harm to some person before the nece necessityssity of preserving himself arose; or

)ټ&##160; Unless, before the necessety were the person usingsuch forc force dece decline line further conflict, and quitted it or retreated from it as far as was practicable.”

“s271 Where it is lawful or a p rson to use force of any degree for the purposes of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to orce of a like degree for the purpose of defending him̶”

The relevant facts for consideration is when Seth intervened and stopped the fight between accused and victim, at that stage there was no confrontation. Accused picked up her child and went up to the house. She returned armed with a bush-knife belonging to Doreen. Doreen had earlier left her knife in the house as she prepared to go to the garden. The victim (Doreen) was surprised when accused approached her and swung the knife at her twice. In order to defend herself she picked up a piece of timber quite long and heavy and attempted to fend the knife off from accused hand. Accused moved in closer and swung the knife third time which inflicted wound already described to her left wrist.

The accused version differs. The reason she armed herself with knife was that if victim attacked her again with any object, she would use the knife to defend herself.

Needless to say, when Seth stopped the women, the confrontation had ceased. Accused picked up her child and walked away and into the house. There is no evidence that Doreen pursued her, let alone with a piece of timber.

Clearly, if accused remained in the house for sometime and did not return with the knife, there would have been no further engagement and subsequent wounding to the victim. At the time accused walked away and into the house, she could not have reasonable apprehension of death or grievous bodily harm or to induce her to believe on reasonable grounds that it was necessary for her preservation from death or grievous bodily harm to use force in self-defence. The situation of reasonable apprehension of death or bodily injury may have arisen when accused returned from the house with a bush-knife. According to Doreen (victim) accused swung the knife at her twice and on a third occasion wounded her. Accused version is that Doreen was armed with a piece of timber which had nails and struck accused once on her shoulder, the force sent accused to sit on the bed. She was not injured not even slightly. It was then, that accused used the knife to fend off the piece of timber and in the process wounded the victim.

There are two views to the facts. One is that, even after Seth stopped the women, the confrontation continued, that is why accused went to look for knife which she did and returned. The other is, the fight effectively ceased, but resumed when accused returned from the house armed with the knife.

Thus on the facts, I find the defence of self-defence under s. 270 is not available to the accused, as I accept the victim’s version that when accused returned with knife she swung the knife at Doreen, who was surprised. She picked up a piece of timber, quite long and reasonably heavy to fend off the knife. When accused struck the third time with the knife, Doreen was wounded on her wrist. If, what accused claims is true, she was struck by Doreen with a piece of timber which had nails and which landed on accused shoulder, quite surprisingly, she received no injuries, not even minor lacerations. If that was the degree of force Doreen applied on her, quite clearly, she could not have reasonable apprehension of death or grievous bodily harm, or to induce her to believe on reasonable grounds that it was necessary for her preservation from death or grievous bodily harm to use force in self-defence.

I conclude that, accused was never struck with a piece of timber at all by Doreen.

As to the availability of aiding in self-defence, I do not consider the facts support it. I also conclude it is not available to the accused.

I next consider the matter of onus of proof, which in my judgement is vital in this case. At common law in a criminal prosecution the onus is on the crown to establish beyond reasonable doubt, every element of the offence. Woolmingt- Director ctor of Public Prosecution [1935] A.C. 462. Also at Common Law Crown must also exclude beyond reasonable doubt the defence of self-defence. Chan Kau -v- The Queen [1955] A.C. R -v- Howe [1958] 100 [1958] HCA 38; 100 C.L.R. 448. The Criminal Code Act makes no provision for onus of proof. But under schedule 2.2 of the Constitution, the principles and rules of Common Law are adopted and shall be applied subject to the applicability and other tests. The principles have survived the tests and so apply and are enforceable as part of the underlying law.

In the instant case, I am satisfied the State has excluded the defence of self-defence beyond reasonable doubt. I find accused guilty of the offence under s. 319 and convict her.

SENTENCE

18 December 1997

The facts and circumstances have been canvassed in my judgement on verdict on the 16th December 1997. Suffice is to say that, your relationship with your co-wife Doreen, has not been harmonious one over a number of years. You have sworn at each other and on occasions fought each other. There does not seem to be an end to bitterness to each other. As I mentioned briefly in my judgement on verdict, that your common husband Seth Yapriha should cop some of the blame for all the troubles between you and Doreen.

In one previous occasion, you were the victim of Doreen’s assault, which ended up in this Court. It is the reverse of that situation now before me.

In considering an appropriate sentence to impose on you, I take into account troubled and stormy relations you and Doreen have undergone, and continued unabated to 28 December, 1996, when this incident arose. Secondly, the circumstances of that incident. Thirdly, you have three young children to care for and the fact that it is your first offence.

The prescribed penalty is seven years imprisonment. I consider, your case is not one that deserves maximum sentence of seven years. Imposing an immediate custodial sentence, in my view will not serve any useful purpose. I consider a period of suspended sentence on bond and compensation is appropriate.

I make the following orders:

(1) & You are sentenced to eigh eighteen (18) months imprisonment in light labour. The execution of the sentence is suspended on you entering into your own recognizaithouety tp peapecially towards Doreen YapriYapriha anha and to d to be ofbe of good behaviour, for period of twelve (12) months next ensuing.

(2) &#1ou are to pay an approprpropriate level of compensation to Doreen Yapriha, such an amount mutually agreeable by both parties, within the period of your bond.

Sentence accordingly.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor