State v Hannan [2010] PGNC 211; N4525 (19 June 2010)

N4525

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1467 OF 2009

THE STATE

V

CHIRS KOI HANNAN

Madang: Kawi, J
2010: 30th May – 2nd June – 7th & 11th - 19th June

CRIMINAL LAW – Verdict – charge of doing grievous bodily to another person – trial – elements of offence satisfied by evidence presented by prosecution – defendant found guilty as charged – s340 (1) Criminal Code Act

Counsel:

Mr. N Goodenough, for the State
Mr M Mwawesi, for the Accused

19 June, 2010

1. KAWI J: Introduction: Chris Koi Hannan of Odd Village, South Ambenob in the Madang Province is charged with doing grievous bodily harm to John Malan on the 31st October 2008 under Section 340 (1) Criminal Code Act.

Arraignment

2. The State allege that on the 21 October 2008, the accused assaulted the victim, one John Malan using a hydraulic weep which caused the said John Malan to lose a number of his teeth. The State alleges that on the evening of 21st October 2008, John Malan and others gathered at the house of Mr Kelly Kekeret who was hosting a feast to thank John Malan and others who had helped Kelly Kekeret plough and plant his new yam garden. After eating John Malan and others were waiting for Kelly Kekeret to set up a video for them to watch and enjoy for the rest of that evening. While Kelly Kekeret was still setting video machines Chris Koi Hannan, who had arrived a little earlier and was sitting in the dark approached John Malan and hit him causing him to fall unconscious. As he lay on the ground, the accused Chris Koi Hannan kept on assaulting John Malan with the hydraulic weep until he was stopped by people who congregated to watch video that evening.

3. The State called the victim John Malan, and Mr Kelly Kekeret to verify these allegations. John Malan in evidence stated that he was sitting on the lawn and was giving his back to the direction of Chris Koi Hannan who came from the back and attacked him. He was hit by an object which he could not describe. Furthermore he did not know how Chris Koi Hannan hit him as by then he was quite drunk. He was sitted when he was hit. He got up and was running towards Kelly Kekeret's land to seek refuge inside the house, when he slipped on the ground and fell down. Chris Koi Hannan who fell to the ground continued to hit him with an object that he could not see. By then he was unconscious where Chris Koi Hannan was then stopped by those who were there. Kelly Kekeret also gave evidence. He stated that after his visitors had eaten, they were having few beers when the accused crept up from behind and hit Malan using a hydraulic weep. The security light from his house provided enough lighting and he could clearly see what was happening as he was only about five (5) meters away from John Malan. He said that Chris Koi Hannan hit John Malan 4-5 times when he lay on the ground.

4. In cross-examination Kelly Kekeret admitted that he was indeed present in court and heard John Malan give his evidence. He sat throughout the whole evidence of John Malan. He stated that he saw Chris Koi Hannan who is related to him, assault John Malan with the hydraulic weep 4-5 times. In his statement to the police, Kelly Kekeret stated that he saw Chris Koi Hannan hit John Malan once using a hydraulic weep which he described it as looking like a vehicle "fan belt". Furthermore in his statements to the police, he stated that he was preparing the TV for his visitors to watch, not a video machine.

5. The defendant had this statement to police tendered as evidence a prior inconsistent statement. This was marked has defence Exhibit 1.

The defence also cross-examined John Malan who stated the following in cross-examination:

a) he was full drunk to see who it was that assaulted him.

b) he did not see whatever object that was used to hit him

c) he did fall unconscious and fell into Kelly Kekeret's kitchen when he rushed for cover into the kitchen.

d) he lost two teeth on the left gum after he was assaulted by the accused, and the other were moving, after he was taken to the police station and later to the Modilon General Hospital that night.

6. The other State witness was Dr Bobby Wells who examined that victim John Malan that night at the accidents and emergency department that night. On examination he found to have sustained the following injuries:

(a) Right Peri-auriculer laceration (2cm in length and super facial)

(b) Left infra-orbital laceration (6cm in length and superficial)

(c) Loose teeth, three right upper incisors.

(e) Right facial abrasion (three)

(f) Right shoulder and back abrasions (five)

7. These lacerations were sutured and dressed. He was treated with oral antibiotics and analgesics for a week. It was recommended that a further review with the dentist be carried out regarding his teeth.

8. Dr Well's medical report was tendered into evidence by consent and marked as State Exhibit. The defence called the accused, Chris Koi Hannan and another one, Roger Malaga who both gave sworn evidence.

9. The trust of the evidence of the accused was that:

(a) He was on the back of a vehicle driven by his father towards Odd Village

(b) As the vehicle drove past Kelly Kekeret's house they saw a group of men had gathered in the yard of the house. They heard a man among the group shout at them. "Yu Kai Kai Kan", papa ground, bai you mekim wanem"? (You eat the vagina, landowners, what will you do).

10. This comments prompted Chris Koi Hannan and his brothers to stop the vehicle and alighted from it. There further than drove to his house. When they got out of the vehicle, they walked to the house of Kelly Kekeret where John Malan and others had congregated.

11. When they came near the house John Malan is alleged to have swore at them using words to this effect "Yu Kai Kai Kan", papa graun, bai yu wokim wanem? (translated this means; "You eat vagina, landowners, what will you do? Or what are you gonna do? He stated John Malan made these comments twice at them.

12. This comments infuriated the accused, very much so he walked up to where John Malan was seated and punched him very hard in his jaw using his fists which was drenched. John Malan ran to the house to get a bush knife and slipped and fell near a betelnut tree and onto the ground. Chris Koi Hannan followed him to where he fell. He denied punching him a second time and even when he lay on the ground.

13. Furthermore he denied using a hydraulic weep to hit John Malan.
In cross-examination he further denied the use of a hydraulic weep to hit John Malan. Roger Malaga who also gave evidence for the defence basically collaborate the evidence of Chris Koi Hannan.

EVIDENCE BY CONSENT

14. The following materials were tendered in by consent of both parties.

a) Medical Evidence of Dr Bobby Wells – Medical Registrar and – State Exhibit 1

b) Record of Interview – Original Pidgin Version – State Exhibit 2 (a) Exhibit Translation – State Exhibit 2 (b)

UNDISPUTED FACTS

a) There is no dispute that the accused Chris Koi Hannan assaulted the victim, John Malan
b) The court accepts that an assault occurred that which required John Malan to seek medical treatment that might.

DISPUTED FACTS

15. The following facts are hotly disputed:

(a) Chris Koi Hannan assaulted the victim John Malan several times.

(b) Chris Koi Hannan used a hydraulic weep to hit John Malan

(c) John Malan is alleged to have sworn initially at the father say " Kai Kai Kan, Papa graun, bai yu wekim wanem"?

(d) he is alleged to have sworn twice at Chris Koi Hannan using the same vulgar language.

FINDINGS BY THE COURT

16. The court makes the following findings:

a) The accused Chris Koi Hannan assaulted the victim John Malan on the 21st October 2008.

b) The assault was accessioned by the use of a hydraulic weep which the accused, Chris Koi Hannan use to hit John Malan.

c) The medical report from Dr Bobby Wells confirms this. John Malan received several deep lacerations to his face and body. One of the laceration to his face was 2cm deep and the other was 6cm deep. The medical report also confirms three upper loose teeth (incisor), three right facial abrasions and abrasion on the right shoulder and back.

d) The fact that John Malan received several laceration and abrasions to his facial area and to his back and right shoulders confirms that Chris Koi Hannan used the hydraulic weep several times to assault John Malan. This includes assaulting John Malan when he was sitting down and several times when he slipped and fell near the betelnut, and several times when he ran into Kelly Kekeret's kitchen. This several blares made John Malan fall into the floor of the kitchen where he fell unconscious.

e) It was John Malan's swear in the words Yu Kai Kai Kan, papa graun, bai yu mekim wanem? Which induced the assault upon him? (John Malan)

f) The use of the weep by Chris Koi Hannan to hit the victim John Malan, on his face several times resulted in John Malan having facial abrasions and loosing a number of teeth.

g) These loose teeth (4 in all) required dental extraction and replacement to improve voice and appearance.

The Charge

17. The accused is charged under Section 340 (1) with causing grievous bodily harm. Section 340 91) of the Criminal Code Act is stated in the following terms;

S340 (1) Assaults occasioning bodily harm.

(1) A person who unlawfully assaults another and by doing so does him bodily is guilty of a misdemeanor.

Penalty; Imprisonment for a term not exceeding three years. This offence is triable summarily under schedule 2 of the Criminal Code.

18. The prosecution must prove beyond reasonable doubt that:

(a) The accused unlawfully assaulted another person;

(b) By assaulting that other person he caused grievous bodily harm.

19. Section 243 of the Criminal Code defines assault in this way:

(1) 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 or indirectly strikes, touches or moves or otherwise applies force to, the person of another without his consent, under such circumstance that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is send to assault that other person, and the act is called an assault.

(2) A reference is subsection (1) to the application of force includes a reference to the application of heat, light, electrical force, gas, odour or any other substance or thing in such a degree as to cause injury on personal discomfort.

(3) A male person under the age of 17 years shall be deemed not to be capable of consenting to any act any other male person that but for such consent would be an indecent assault.

20. Grievous bodily harm is defined in section 1 of the Criminal Code as "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".

21. In the present case the accused Chris Koi Hannan used a hydraulic weep to hit the victim John Malan on his facial area as well as on the right shoulder and his back. The accused used the hydraulic weep several times to hit John Malan. This is clearly verified by the medical evidence.

22. The accused states that he punched John Malan only using clenched fists. This court rejects that assertion by the accused. The court so finds out and accepts that it was Chris Koi Hannan who used the hydraulic weep to assault John Malan several time on the face. This resulted in John Malan sustaining several facial injuries including injuries to his teeth. The loose teeth (4 in all) required dental surgical extraction. They were then replaced with the insertion of false teeth to improve the voice and facial appearance.

23. In my view the assault to the facial area resulting the loss of 4 teeth was bodily injury which endangerd and caused permanent injury to the health of John Malan.

24. This court is satisfied beyond reasonable doubting the following:

(1) Chris Koi Hannan unlawfully assaulted John Malan at Odd village on the 21st October 2008.

(2) The assault was implicated using a hydraulic weep.

(3) Chris Koi Hannan used the hydraulic weep several times to hit John Malan on his facial and his right shoulder areas.

(4) The assault implicated several injuries to John Malan's facial area and shoulders including laceration and abrasion and the permanent loss of 4 teeth.

(5) The extraction of these 4 items and replacement with false teeth were bodily injuries which caused permanent injury to the health of John Malan.

25. For all these reasons I find the accused guilty of causing grievous bodily harm to the person of John Malan, which is contrary to Section 340 (1) of the Criminal Code. Chris Koi Hannan is guilty as charge and is accordingly convicted under section 340 (1) Criminal Code.

___________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused