N4370

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 37 OF 2010

STATE

V

GRACE JOHN (No.2)
Accused

Goroka: Ipang AJ
2011: 4, 9 & 16 August

CRIMINAL LAW – Grievous bodily harm – s.319 Criminal Code Act –accused bit off victim's second (2nd) right digit finger completely with her teeth – defence of provocation under s.266 Criminal Code Act raised.

CRIMINAL LAW – s.266 Defence of provocation – victim not an innocent by-stander – interfered with fight between husband & wife – got her right second (2nd) digit finger bitten off completely – accused caused the offence after drinking beer at Kakaruk Market – Evidence of de-facto provocation present.

Cases Cited
Regina v Marum Yapusek [1973] PNGLR 582
R v Agana Guguna (1965) N364

Counsel
Ms. B. Gore, for the State
Mr. M. Mumure, for the Accused

DECISION ON VERDICT

16 August, 2011

1. IPANG AJ: The accused Grace John pleaded not guilty to one count of causing grievous bodily harm to another person namely Wendi Bruce contrary to Section 319 of the Criminal Code Act, Chapter 262.

BRIEF FACTS

2. The State alleged that on the 21st day of August, 2009 at Kakaruk Market in Goroka, the accused who was with her elder sister Lin had few beers there. She then saw her husband and had an argument with him. A fight eventuated. The accused and her elder sister fought with the accused's husband. The victim Wendi Bruce, a good friend of the accused's husband attempted to stop the fight. She told the accused and her husband to stop fighting and to go home. This was because it was a public place and there were a lot of people.

3. The accused was mad at the victim for interfering in her problem with her husband and so she fought with the victim. The victim then fought back and in the course of the fight the accused bit the victim's second (2nd) right digit finger and completely cut it off with her teeth.

4. The offence of unlawfully causing grievous bodily harm is provided for under section 319 of the Criminal Code Act, which reads as follows:

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

5. In order for the State to establish this offence, it bears the onus of proving the following elements:

(i)	A person 
(ii)	Who unlawfully does grievous bodily harm
(iii)	To another person

6. Apart from proving the above elements, the State also bears the additional burden of disproving the defence of "self–defence" s.270, Criminal Code Act and provocation under s.267 of the Criminal Code Act.

STATE'S CASE

7. The State did not call any witnesses to testify apart from tendering the following documents in Court.

1)	Record of Interview in Pidgin dated 2nd September 2009 "Exhibit A"
2)	Record of Interview in English translation as "Exhibit B"
3)	Medical Report by HEO OIC Kaven Simini dated 26th August, 2009 as "Exhibit C"

8. Ms. B Gore for the State submitted that the Medical Report is consistent with the Record of Interview regarding nature of injuries sustained by the victim. The Medical Report stated in part, "She was seen at the Goroka General Hospital Accident and Emergency Section. She was found to have a complete loss of the right 2nd digit phalanges due to the bite". The report went on and stated, "Review at the above mentioned clinic on the 5th August, 2009. She was in severe pain with a complete loss of the right 2nd digit".

9. Apart from the Medical Report, Ms. B. Gore submitted that the accused made admissions in answer given in the Record of Interview to question 9, 13 and 16 but raised the defence of provocation and self –defence.

Q9.	When you and your sister fought with your husband, what happened at the time?
Ans: 	I and Lin, my big sister were fighting with my husband, Wendi came and fought me and I fell down and got up again, she wanted to fight me and she pushed her finger in to my mouth and I bite her finger and cut her finger.

Q13.	Then she got crocked of your abusive language you said to her and tried to fight you and you bite her finger with your teeth and cut it. Is that correct? 
Ans: 	I did not swear or use abusive language to her. But I bite her and cut her finger.

Q16.	Is Wendi one of your husband's family members or what family relation to your husband? 
Ans: she is not a family member of my husband or me as well. She is a different women altogether but she entertained herself to me and my husband's problem and she got injured. 

DEFENCE CASE

10. Defence called only the accused who gave sworn evidence. She said on the 21st August, 2009, she was at the Kakaruk Market. She was drinking beer with her elder sister. After drinking, she fought with her husband. She said Wendi said "enough! enough and swung her fist at her". The accused continued that she (Wendi, tried to stop the fight but she couldn't so she swung her fist at her (the accused).

11. The accused gave evidence that Wendi swung her fist twice at her and the second first swing at her landed at her mouth in which her (Wendi) finger was caught in her mouth. Accused said Wendi was with her friend and both punched her. She (accused) when pressed further said Wendi punched her plenty times. She said when Wendi's finger went into her mouth, she bit it.

ON CROSS –EXAMINATION 

12. Accused said she was arguing with her husband. She said she and her elder sister fought with her husband. She said Wendi got involved in the fight. She said Wendi tried to stop her and her husband from fighting. She said she was mad with her husband and also mad with Wendi involving herself with her husband's fight. She said she and her sister assaulted Wendi. She said Wendi responded and fought with her and her sister. The accused said the victim used her hand and fought with her.

13. When questioned, that you bit her finger and cut it off completely? She (accused) answered "No, I said sorry to her and gave her K200.00".

14. You said sorry because you bit her finger and cut it off completely? Ans: Yes

15. The victim did not provoke you, she stopped the fight? Yes

16. The victim was with your husband alone? She came with another lady.

17. Is Wendi a good friend to your husband? Ans: I don't know.

18. When you bit her finger you intended to cause injury to her? I said sorry to her.

19. You caused injury to her? Ans: Yes

20. Had you use your hand, she shouldn't have received such injury? Ans: That's true.

21. You used your teeth so she suffered injury? Ans: Yes

22. Mr. Mumure of Counsel for the accused submitted that the defence of self –defence has not been made out. However, he submitted that the defence of provocation has been made out. He submitted that there was provocation by the victim resulting in the assault. He said the victim had no relationship with the accused. The accused was at the Kakaruk market drinking beer and fought with her husband. The victim came in to intervene and stop the fight.

23. Counsel said it then became the fight between the victim and the accused. Counsel said the accused stated that she (victim) was with another woman and both threw punches at her. She fell down and stood up. The victim pushed her finger in to her mouth and she bit the finger. In the present case, counsel for the accused submitted that the victim is not an innocent by –stander. She was a stranger who went and interfered with the fight that led to her been assaulted. 	

24. Mr. Mumure referred this court to the definition of the word "provocation" as per s. 266 (1) of the Criminal Code Act. He said provocation used with reference to an offence of which assault is an element means a "wrongful act" of such a nature when done will deprive a person of self –control. In this present case, Mr. Mumure submitted that Wendi (victim) being a total stranger, went and interfered with a fight that was going on between the accused and her husband. Counsel said the accused was angry because the victim interfered with her fight.

25. Defence Counsel submitted that the force used by the accused on the victim by biting her finger completely off was proportionate as the accused fought with two (2) women, the victim and another lady. The accused fell down, stood up and bit the finger.

26. Mr. Mumure referred to the case of Regina v Marum Yapusek [1973] PNGLR 582. The facts of this are as follows. The accused and his wife from a remote area became involved in a domestic argument. The wife hit the accused with a piece of taro and he retaliated immediately with no intention of causing harm, by slapping her with an open hand on the ear and to the right side of the chest and kicking her with no great force at about the level of the buttocks. The wife's spleen which was already enlarged because of malarial infection was ruptured and she died. The Court held that the accused had acted under provocation and the force used was not disproportionate to the provocation and was not intended nor was such as was likely to cause death or grievous bodily harm. The Court in this case returned a verdict of not guilty.

27. The Marum Yapusek's case (supra) can be distinguished from this present case. In Marum Yapusek's case the victim (accused's wife) had pre-condition in that she already had enlarged spleen because of Malaria and died due to ruptured spleen. Intention to cause grievous bodily harm or to cause death was not there. Force used was proportionate. However, in this present case, the victim has no pre-condition on her second (2) right digit finger until it was bitten and cut off completely.

28. Mr. Mumure said the accused has made out the defence of provocation and therefore should be acquitted.

29. The onus is on the prosecution when a defence on provocation is raised, and the State must prove beyond reasonable doubt that the elements supporting the defence are not present. See R v Agana Guguna (1965) N364.

30. Ms. Gore referred this Court to page 4 of her submission she filed. She submitted that fighting at the market place is bad. She quoted s. 266(3) of the Criminal Code Act which states, "(3) A lawful act is not provocation to any person for an assault".

31. The Record of Interview (ROI) both the Pidgin and the English translation versions have confirmed injuries sustained plus the Medical Report has also further confirmed that. Ms Gore of Counsel for the State submitted that the accused admitted in cross –examination that the victim attempted to stop the fight but the accused insisted on fighting with her husband. The accused was mad with her husband. The accused also was mad with the victim interfering in her problem. The accused with her elder sister fought with the victim. The victim responded by attacking the accused. In the course of the fight the victim's finger got into the accused's mouth and she bit it and cut it completely off. Refer to paragraph 9.4 of Ms. Gore's submission that had accused used her hands instead of her teeth to fight the victim, victim would not have suffered such injuries and that the accused conceded to this. The Accused said she paid K200 and apologised to the victim.

COURT'S ANALYSIS

32. The defence of self –defence is provided for under s.270 of the Criminal Code Act. From the outset of his submission, Defence Counsel submitted that the defence of self – defence has not been shown. Therefore, the Counsel has not made any submission on the defence of self- defence.

33. It has become clear and not disputed that the accused has caused grievous bodily harm to the victim, Wendi. The accused has admitted to that and also the Record of Interview (ROI) both the Pidgin and the English translation version has confirmed that plus the Medical Report has also further confirmed that.

34. But the issue that arises is one of defence of provocation. Did the accused Grace John act under provocation? Section 267 of the Criminal Code Act sets out the defence of provocation. 

267 Defence of provocation

1.	A person is not criminally responsible for an assault committed on a person who gives him provocation for 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?

35. It was argued that provocation happened when the accused had the argument with her husband which eventually led to them fighting. The victim intervened and tried to stop the fight. The victim said "enough! enough! Which eventually led to fight between the victim and the accused. The accused was with her elder sister Lin when both fought with the accused's husband and eventually the victim. The accused said also that the victim was with another lady when the victim fought with the accused.

36. In the course of the fight, the accused fell down to the ground and stood up, then victim then threw a punch at the accused's mouth, and her finger got in to accused's mouth, which the accused bit it, cutting it completely off.

37. It was argued that the victim, a stranger went and interfered with a fight that was going on between a husband and wife. The accused admitted that she was angry because of the victim's interference.

38. The issue as to whether the victim was a stranger who interfered with the fight between the accused and her husband can be settled. The statement of facts, tendered in court revealed that the accused's husband and victim were brought up at Piswara settlement and knew each other. That was the reason the victim went to the accused's husband and told him to go home.

39. The section 266 Criminal Code Act "provocation" mentioned the phrase "an ordinary person". From the facts adduced, the date 21st August, 2009 was on a Friday, and at that time Kakaruk market was crowded with people. Prior to the fight between the accused, her elder sister and accused's husband, the accused & her elder sister were drinking beer at the Kakaruk market.

40. Two (2) factors I consider against the accused is that she was not a normal or ordinary person at that time the offence was committed. She had been drinking beer already, started arguing with her husband and with aid of her elder sister fought with her husband.

41. The victim with her good intention intervened and tried to stop the fight in which the accused turned on her. She did not cause any injuries to the accused. Yet the force used or applied by the accused on her, saw her permanently losing her right second (2nd) digit finger. The force applied by the accused is disproportionate. I therefore reject the accused's defence of provocation. In doing so, I return the verdict of guilty and enter conviction against the accused on the charge of unlawfully causing grievous bodily harm contrary to s. 319 of Criminal Code Act.

____________________________________

A/ Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused