N3231

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1441 OF 2006

THE STATE

V

BOMAI HESI (NO.1)
Accused

Goroka: Davani. J
2007: 8, 9 November

CRIMINAL LAW - charge of grievous bodily harm - defence of accident - State to negative defence beyond reasonable doubt – s. 24 and s.319 of Criminal Code Act.

CRIMINAL LAW - defence of accident - accused wielding dangerous weapons - use of reasonable care - duty of persons in charge of dangerous things - negligence, is the criminal standard - s. 287 of Criminal Code Act. 

Accused was assaulted in a fight and lost consciousness. When he regained consciousness, he grabbed 2 bush knives and went to the house where he thought those who assaulted him were. His intention was to fight them using the knives. Whilst in the house, he swung the knives menacingly and dangerously in front of him and at the back, cutting several persons including the victim.

Held

(1)	The State must negative the defence of accident beyond reasonable doubt..
(2)	Persons in charge of dangerous things must exercise reasonable care and take reasonable precaution for those around him.
(3)	To be criminally negligent, the accused must have acted with reckless disregard for those around him.

Cases Cited
John Wanamba v the State SC551
Evengtiou v the Queen (1964) 37 ALJR 508
R v Abe (1964) No. 299A
R v Yofia Abone [1967-68] PNGLR 22
State v Kaiwa Iasumi (1978) N163

Counsel 
T. Ohuma, for the Accused
C. Sambua, for the State

VERDICT

9 November, 2007

1. DAVANI. J: BOMAI HESI (the ‘accused’) was indicted with one (1) count of Grievous Bodily Harm (‘GBH’) under s. 319 of the Criminal Code Act (‘CCA’). On arraignment, he pleaded not guilty and the matter proceeded to trial.

S. 319 of the CCA reads;

"319.	Grievous bodily harm

A person who unlawfully doe grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years".

2. Grievous Bodily Harm is defined under s. 1 of the CCA as;

"grievous bodily harm" means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health".

States allegations

3. The State alleges that on 22 July, 2006 the accused caused Grievous Bodily Harm to one Julie Gahane (the ‘victim’) at 4 Mile, Kefamo, Goroka in the Eastern Highlands Province.

Defence

4. The accused raises the Defence of accident under s. 24(1)(b) of the CCA. The whole provision reads;

"24.	Intention: Motive

(1)	Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for –

(a)	an act or omission that occurs independently of the exercise of his will; or

(b)	an event that occurs by accident.

(2)	Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3)	Unless otherwise expressly declared, the motive by which a person is induced –

(a)	to do or omit to do an act; or
(b)	to form an intention,

is immaterial so far as regards criminal responsibility".

Evidence

5. Both counsel agreed to tender certain material by consent. These were the accuseds record of interview with the police, both the Pidgin and English versions and the medical report. The victim was the only witness for the State. The accused was the only witness for the Defence.

Analysis of Evidence and the Law

6. Julie Gahane, the victim, is from Ifiyufa village, Goroka in the Eastern Highlands Province. On 22 July, 2006 at about 5 am, she was in the haus line with about 35 other people, men, women and children. She had just woken up from sleep and was cooking breakfast. She heard somebody say there was a man standing at the doorway with 2 bush knives in his hands. She looked and saw the accused standing there.

7. Victims brother Kevin then shone a torch. At the same time, the accused ran into the house swinging the 2 bush knives in front of him and behind him.

8. The accused admits that he was swinging the 2 bush knives he was holding but he did so only because he wanted to keep the people in the house at bay. His evidence is that, prior to going to the hausline, he was at a party drinking. Some men from Ifiyufa village, assaulted him and left him unconscious. He was assaulted because he said he was trying to stop a fight between boys from 4 mile and Ifiyufa. But they turned upon him assaulted him and knocked him unconscious. When he came to sense, he then took his bush knife, grabbed another bush knife from a bystander and rushed to the hausline because he said he wanted to fight with those who had fought him.

9. It was whilst he was swinging his bush knives that he cut several people, including the victim.

10. The accused said he accidentally cut the victim because she stepped into the path of the swinging bush knives. That because she came up to him from his back that he could not avoid cutting her. But the victim said she was standing on the side and that after he cut 2 boys, he turned on her swinging his knives at the same time. She put up her left hand to protect herself and that was when he struck her in the palm of her hand, completely severing the tip of her thumb and also cutting her in the head. The medical report prepared by Dr. Warai of the Goroka Base Hospital dated 1 August, 2006, describes her injuries as;

"1.	deep laceration on the fontanel of the parietal regions measuring 5 x 2 cm.
2.	left thumb amputated.
3.	left palmer laceration extending down to the wrist.
4.	severe bleeding with loss of excessive blood.
5.	Multiple minor bodily wounds".

11. The medial report concluded that "the patient had severely sustained multiple bush knife wounds with loss of thumb and excessive blood". 

12. Before the appellant can invoke the benefit of the Defence of accident under s. 24 (1) (a)(b) of the CCA, he must overcome the hurdle in s. 287 of the CCA which imposes upon him the duty of care as a person in possession of a dangerous weapon likely to endanger human life, to use reasonable care and take reasonable precautions to avoid danger to the people around him. (see John Wanamba v the State SC 551 (29 April 1998, judgment by Woods, Jalina, Kirriwom. JJ).

13. The Supreme Court devised the test in John Wanamba (supra) when it said; 

"The question is, did he use reasonable care in the handling of the gun or take reasonable precautions to avoid danger to the public whose life would be endangered? To answer this question, one has to look at the prevailing circumstances surrounding this incident.".

14. As to the exercise of reasonable care, s. 287 of the CCA provides for the duty of persons in charge of dangerous things. It states;

"287.	Duty of person in charge of dangerous things

(1)	It is the duty of every person who, except in a case of necessity, undertakes -
(a)	to administer surgical or medical treatment to any other person;
or

(b)	to do any other lawful act that is or may be dangerous to human life or health,

to have reasonable skill and to sue reasonable care in doing the act, and he shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to observe or perform that duty".

15. And the standard of negligence to be established is the criminal standard, which involves showing the accused acted with such a reckless disregard for the lives and safety of others as to make his or her conduct deserving of punishment (see Evengtou v the Queen (1964) 37 ALJR 508).

16. And ‘criminal negligence’ was decided in the case R v Abe (1964) No. 299A where the court held that it "is conduct going beyond a matter of compensation and is conduct deserving of punishment". The court must also assess the degree of negligence. ".. and a very high degree of negligence is required to be proved before the following is established". (see the State v Kaiwa Iasumi (1978) N163.

17. Furthermore, as Wilson. J said in the State v Kaiwa Iasumi (supra);

"To look at this question from another viewpoint, the State, to obtain a conviction here, must prove that the accused was guilty of criminal negligence. It hardly need be stated that an event which is unintended, unforeseen and unforeseeable is an event as to which the accused person is neither intentional nor reckless nor negligent. This accused caused the death of the deceased but he may not be held to be criminally responsible for doing so it, with respect to the deceased, he acted neither intentionally nor recklessly nor negligent. If that be the case, the event is conveniently called an accident".

18. Again, in R v Yofia Abone [1967-68] PNGLR 22, Minogue. J in the Supreme Court held that;

"to sustain a charge of unlawfully doing grievous bodily harm contrary to s. 320 of the Criminal Code, the Crown had to prove that the act causing grievous bodily harm was unlawful either because it amounted to an act of criminal negligence under s. 289 or because though not itself a criminally negligent act, its result, the infliction of grievous bodily harm, was not "an event which occurred by accident" within the meaning of s. 23…"

19. The undisputed evidence and circumstances of this case are that the accused on regaining consciousness was hell-bent on seeking revenge. He demonstrates this by immediately grabbing hold of 2 bush-knives then heading off directly to the hausline where he knew those who assaulted him would be. He was adamant in inflicting injury on somebody by the manner in which he carried himself i.e. he strode off menacingly swinging the bush knives. When in the house, he could see sleeping people there but instead of leaving, continued swinging his knife. Whilst swinging his knife, he strode through the house, oblivious to the danger created by his actions.

20. He claims that the victim was cut because she stepped into the path of the swinging knives. But any ordinary thinking adult person would know that it is dangerous both for himself and those around him to be swinging 2 bush knives, and in a house filled with people, for that matter, with no thought for the safety of those in the house. It demonstrates to this Court the lack of foresight and care by the accused. He was determined to hurt somebody and he did it.

21. No ordinary thinking person would brazenly go into somebody’s homes with bush knives swinging, more akin to the great western movies where the hero or the baddie, goes in "with guns blazing", intent on killing or maiming, whatever his agenda was.

22. Again the medical report also demonstrates that this could not have been an accident because the victim sustained multiple bush knife wounds. In my view, to fall within the category of an accident, it would have been a single blow, after which the accused would have retreated. But it appears he may not have struck the victim once, but maybe twice or three times. The report states that the victim suffered 80 percent functional loss to parts of her body.

23. The evidence shows that this could not have been an accident. The accused went to the hausline, armed with 2 bush knives and determined to exact his revenge. He did not take any reasonable precautions, in fact, that was not his agenda. He did not exercise reasonable care, at all. His actions were criminally negligent to a very large extent. Additionally, I am against at the thought that the accused considers it ‘okay’ to be armed with 2 bush knives and to walk into somebody’s home hell bent on revenge and in his view, if somebody gets hurt, then that’s an accident. Is it a culture that should be tolerated and accepted or a culture that must be abrogated and discouraged by those in positions of responsibility, like Defence Counsels? These brazen acts committed by misguided, revenge seeking, hormone driven individuals, ought to be chastised and fittingly dealt with.

24. I find the State has negatived the Defence of accident and has done so, beyond reasonable doubt. This Court finds the accused guilty of the offence of Grievous Bodily Harm.

_______________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused