State v Agua [2009] PGNC 243; N3932 (16 July 2009)

N3932

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 208 OF 2007

THE STATE

V

MARIA AGUA

Madang: Cannings J
2009: 9, 13, 16 July

VERDICT

CRIMINAL LAW – trial – unlawful assault occasioning bodily harm, Criminal Code, Section 340 – definition of "assault", "bodily harm", "unlawfully" – defence of provocation, Sections 266 and 267.

The accused, a young woman, was charged with unlawfully assaulting another woman following an altercation that arose over an allegation that the accused was going around with the complainant's husband. The accused is alleged to have punched the complainant in the face and broken her arm by hitting her with a stick and causing her to fall on to the road. The accused admitted to punching the complainant but denied hitting her with a stick and breaking her arm. She raised the defence of provocation.

Held:

(1) There are three elements of the offence under Section 340: assaulting another person; by doing so causing bodily harm; and doing it unlawfully.

(2) "Assault" is defined by Section 243(1) of the Criminal Code: it includes striking the person of another person without their consent.

(3) "Bodily harm" is defined by Section 1(1) to mean "any bodily injury that interferes with health or comfort".

(4) The "unlawfully" element is satisfied if the State proves that the accused's actions were not authorised, excused or justified by law.

(5) In the present case, the first element was proven as the accused conceded that she punched the complainant in the face and this was done without her consent. However, assault with the aid of a stick was not proven.

(6) The second element was proven as the complainant suffered bodily injury to her face that interfered with her comfort. However, it was not proven that the accused broke the complainant's arm.

(7) The third element was not proven as the State failed to disprove any of the elements of the defence of provocation; in particular failed to prove that the force used was disproportionate to the provocation or that it was not likely to cause grievous bodily harm.

Cases cited

The following case is cited in the judgment:

R v Nikola Kristeff (1967) No 445

TRIAL

This was the trial of an accused charged with unlawful assault occasioning bodily harm.

Counsel

M Ruarri, for the State
N Los, for the accused

16 July, 2009

1. CANNINGS J: Maria Agua, the accused, a young Chimbu woman, is charged with unlawful assault occasioning bodily harm, an offence under Section 340 of the Criminal Code. The complainant is Helen Arisi, a young Bogia woman. The offence is said to have been committed at Balasigo market in Madang on the morning of Saturday 14 October 2006. The State alleges that an argument between the pair erupted after the complainant alleged that the accused had spent the night with the complainant's husband. The accused punched the complainant and hit her with a stick, causing her to fall on to the road. She suffered a broken arm, the State alleges.

2. The accused admitted to punching the complainant but denied hitting her with a stick and breaking her arm. She raised the defence of provocation.

3. The indictment presented to the Court charged the accused with the more serious offence of unlawfully doing grievous bodily harm to the complainant but that charge has been dropped. It is only the charge under Section 340 that has been pursued.

ELEMENTS

4. Section 340(1) (assaults occasioning bodily harm) of the Criminal Code states:

A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

5. The offence has three elements:

• assaulting another person;
  
• by doing so, doing that person bodily harm; and
  
• assaulting the other person unlawfully.
  

Assault

6. To determine whether the first element is satisfied, reference must be made to the definition of "assault" in Section 243(1) (definition of assault) of the Criminal Code, which states:

A person who—

(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

Bodily harm

7. "Bodily harm" is defined by Section 1(1) to mean "any bodily injury that interferes with health or comfort".

Unlawfully

8. As for the requirement that the accused acts unlawfully, Section 244 of the Criminal Code states that all assaults are unlawful unless authorised, excused or justified by law. An assault causing bodily harm can be rendered lawful if a defence such as provocation, prevention of repetition of insult or self-defence applies (see Criminal Code, Sections 267-271).

ISSUES

9. The issues before the court therefore are:

1. Did Maria Agua assault Helen Arisi?
   
2. Did Maria Agua, by assaulting Helen Arisi, do her bodily harm?
   
3. Did Maria Agua act unlawfully?
   

1 DID MARIA ASSAULT HELEN?

10. The accused said in sworn evidence that she was at the market, preparing to sell flour balls and chicken feet that she had earlier in the morning been cooking, when she was alerted to the fact that the complainant had arrived on the scene, armed with a US-made knife and was poking it through the fence, trying to stab her. She then heard the complainant say 'Yu kai kai kok bilong Bonny?' She took this to mean that the complainant was alleging that the accused had spent the night with her husband Bonny, so she charged around the fence that separate the inside of the market from the bus stop outside and confronted the complainant and started punching her.

11. The complainant blocked her blows but she managed to land a few punches on her face, the accused said, without causing too much harm. The complainant slunk to the ground, hanging on to the accused's knees on the way down. It was a very public fight, there were a lot of people around and they were soon separated. The accused said she did not hit the complainant with a stick and the complainant suffered no serious injury. She certainly did not sustain a broken arm, the accused testified.

12. Her story was backed up by the other defence witness, Maggie Peter. She is a Goroka/Bogia woman and the accused's sister-in-law. Her evidence was that she was with the accused and her parents preparing food to sell at the market early in the morning. Bonny came to the house and purchased some flour balls for himself and his two mates with whom he had been all night drinking. The complainant turned up at the house and saw her husband ther and jumped to wrong conclusions and got cross with him. Later, at the market, the wife (the complainant) turned up again, pushed a knife through the fence in the direction of the accused, then swore at the accused and alleged that the accused playing around with her husband. The accused was ashamed by the sorts of things that the complainant was saying so she went around the fence and they fought. It was a "fair fight" in a public place and the protagonists used only their fists. The accused did not have a stick. The evidence of the two defence witnesses was consistent.

13. As for the complainant's evidence, she admitted being cross with the accused. She was concerned that her husband had spent the night with this woman and that he had been drinking. She said 'Why are you doing this with my husband when me and my children are hungry?' She did not swear at her but the accused was angered by what she said and mobilised a mob and then she attacked her, first punching her on the face and then she got a stick. This caused her to fall on to the road. The ground was uneven and she fell heavily on the hard surface. She broke her arm and was in great pain and went to the hospital for treatment. She eventually got an x-ray after paying K50.00 and the medical report confirmed that her arm had indeed been broken. The complainant was the only State witness.

14. From these competing versions of events one clear fact emerges: the accused punched the complainant in the face and this was done without the complainant's consent. She assaulted the complainant, so the first element of the offence has been proven.

15. However, I am not satisfied that the assault was committed with the aid of a stick. No witness came forward to back up the complainant's evidence. No stick has been adduced in evidence. None of the three witnesses was obviously lying or giving more credible evidence than the other. So I find as a fact that the accused did not use a stick.

2 DID MARIA DO BODILY HARM TO HELEN?

16. This element of the offence has been proven as the complainant suffered bodily injury to her face that interfered with her comfort. However, it has not been proven that the accused broke the complainant's arm.

17. I have already found that there was no stick involved in the assault and it is difficult to believe that without the aid of such a weapon a person in the position of the complainant would suffer so heavily as to break her arm. It is certainly not impossible, but it does seem an unlikely scenario and more evidence than what was presented was required to prove that an arm was broken.

18. The other problem for the State is that the medical evidence suggests that the complainant presented to the hospital with her arm badly swollen (confirmed by x-ray to be broken) on 17 October 2006 – three days after the incident. The defence tried to present evidence that it was the complainant's husband, Bonny, who broke the arm, but that was hearsay and I reject it. However, it was not up to the defence to show how the complainant's arm was broken, it is the State who bears the onus of proof. The onus has not been discharged and I find as a fact that the accused did not break the complainant's arm.

3. DID MARIA ACT UNLAWFULLY?
   

19. This is where the issue of provocation is critical. Mr Los argues that the accused was provoked by two things that the complainant did: she tried to stab the accused with the knife and she swore at the accused.

20. Evidence of this provocation came from both defence witnesses. It was to some extent corroborated by the complainant's evidence. She admitted that she was for some time holding a knife, which she said was her husband's, but only a pocket knife. And she admitted being angry and raising her voice at the accused – though not swearing at her. Thus there was sufficient evidence of provocation to put the onus on the State of disproving this defence.

21. Once the accused puts evidence of provocation the onus rests on the prosecution to disprove the defence. The leading case is R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, in which Frost J stated:

As to onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present.

22. Mr Los submitted that provocation provided the accused with a complete defence under Section 267 (defence of provocation) of the Criminal Code, which states:

(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.

23. As to the meaning of "provocation" there is a definition in Section 266 (provocation):

(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.

(3) A lawful act is not provocation to any person for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

Elements of the defence

24. The provocation provisions are rather complex but can be broken down into elements. The accused will not be criminally responsible (so it is a complete defence) if the following state of affairs exists:

1. The complainant gave the accused provocation (as defined by Section 266);
   
2. The accused was deprived by the provocation by the power of self-control;
   
3. She acted on the provocation "on the sudden" and before there was time for her "passion to cool";
   
4. The force she used was not disproportionate to the provocation;
   
5. The force used was not intended to cause and not likely to cause death or grievous bodily harm.
   

Questions

25. The defence can be framed by posing these questions:

1 Did the complainant provoke the accused?

2 Was the accused deprived by the provocation by the power of self-control?

3 Did the accused respond to the provocation "on the sudden" and before there was time for her "passion to cool"?

4 Did the accused use force that was not disproportionate to the provocation?

5 Was the force used by the accused not intended to cause and not likely to cause death or grievous bodily harm?

26. For the defence to succeed all questions must be answered yes. If one or more is answered no, the defence fails. Returning now to the onus of proof: the prosecution must prove beyond reasonable doubt that the answer to at least one of the questions is no.

Answers

27. In my assessment of the evidence, that onus has not been discharged. The complainant provoked the accused in the two ways highlighted by Mr Los. The accused was understandably deprived by the provocation of her power of self-control. She was angered by the allegation that she was playing around with the complainant's husband. In that regard it must be noted that there was no evidence that she had had sex with him or had any sort of intimate relationship with him. It was a false allegation. There is also the issue of the knife being poked through the fence. That is a very provocative and offensive act.

28. The accused responded while she was still angry. She charged around the fence and started belting up the complainant. She landed a few blows and behaved in a most unladylike manner but in all the circumstances I consider that the force used was not disproportionate to the provocation. It was not intended to cause death or grievous bodily harm and was not likely to result in either of those outcomes.

29. All of the five questions are answered yes. The State has been unable to disprove provocation. The defence applies. It is a complete defence. The accused's actions were not unlawful. The assault was in terms of Section 244 justified by law. The third element of the offence has not been proven.

VERDICT

30. Maria Agua is found not guilty of unlawful assault occasioning bodily harm under Section 340 of the Criminal Code and not guilty of any other offence.

Verdict accordingly.
___________________________

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