State v Boi [2012] PGNC 202; N4780 (20 August 2012)

N4780

PAPUANEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.442 and 438 OF 2010

THE STATE

-V-

WILLIE BOI AND IKUPU IRU

Waigani: Maliku AJ
2012: 20th August

CRIMINAL LAW- Grievous Bodily Harm- Section 319 of Criminal Code Act

Cases Cited:
Papua New Guinea Cases

State-v- Carol Peter [2011] PGNC131

Overseas Cases

Browne-v- Dunn (1893) 6 ER 67

Counsel

Mr Kuvi, for the State
Miss Saroa, for the accused

VERDICT

20th August, 2012

1. Maliku AJ: The accused are each and severally charged that he on the 21st of December in 2010 at Two (2) Mile, Port Moresby, National Capital District in Papua New Guinea did each and severally caused grievous bodily harm to one Thomas Pillar, contrary to Section 319 of the Criminal Code Act.

Plea

2. The accused each and severally having the benefit of a legal counsel pleaded not guilty to one count of unlawful grievous bodily harm.

3. Prior to the State calling its witness, Mr Kuvi for the State tendered the following documentary evidence with consent of defence counsel which were accepted and marked accordingly:

1. The Hand Written Record of Interview of the accused Ikupu Iru dated 11th of January 2010 marked Ex A
   
2. Typed Record of Interview of accused Ikupu Iru dated 11th of January 2010 marked Ex B.
   
3. Hand Written Record of Interview of accused Willie Boi dated 11th of January of 2010 marked Ex C
   
4. Typed Record of Interview of accused Willie Boi dated 18th of January of 2010 marked Ex D
   
5. The Medical Report on the Complainant dated 21st of December 2009 by Doctor Luna Amlau of Port Moresby General Hospital marked Ex E.
   

The Oral evidence of State witnesses

Dr Luma Amlau:

4. He is a Doctor in Dentistry. He holds a Diploma in Dentistry, a Bachelor in Dentistry obtained in 2001- 3003 at the University of South Pacific in Fiji. He completed his residency in 2006. At the time he gave evidence he is practicing Dentistry since 2000 at Port Moresby General Hospital.

5. Dr Luma Amlau's evidence was to clarify the Medical Report which he compiled of the complainant marked Ex "E". His evidence is that upon dental examination of the complainant, the following were clinically noted by him.

- Tooth 28 had to be removed under local anaesthetic because it was very loose as a direct result of the trauma received. However, it may have been associated with periodontal diseases but was prematurely lost as a direct result of the blow received when he got the punch on the left side of his face.

- Teeth 11, 21, 22, 24, 26 and 27 were slightly mobile or loose and tender to touch while tooth 27 (upper left second molar) was extremely sensitive and tender as it may have been heavily subjected to the amount of trauma sustained.

- Generalised bruising around the inner aspect of the left cheek.

- The complainant was obviously in discomfort and had some difficulty opening his mouth for these dental examinations.

- His left mouth and facial soft tissues were tender to touch.

- There was tearing in the gingival tissues around the tooth 28 which was eventually removed at the dental clinic.

- Tooth 27 was obviously knock very loose and had to be removed under local anaesthetics.

- Associated back ache and headache (as per review by a medical officer) and a separate medical report compiled.

- Other oral hard and soft tissues were generally grossly intact.

6. From the above observation Dr Luma Amlau therefore diagnosed the complainant to have sustained:

- Multiple facial and dental soft tissue injuries

- Partial subluxation of teeth 11, 21, 22, 24, 25 and 26

- Lateral subluxation of tooth 27 and 28 from trauma.

- Associated headache and back injuries.

7. Furthermore Dr Luma Amlau also states that the complainant shall in fact suffer unnecessary pain and discomfort for the next couple of days and 100% premature loss of one permanent tooth, 80% damage to the upper left second molar tooth which showed a poor prognosis in terms of its long term survival and function.

8. In conclusion Dr Luma Almau concluded that:

- 40% over all damage and loss of efficiency can be awarded for the dental injuries and damages sustained.

- The complainant shall with no doubts require regular professional dental care in the years to come to ensure he maintains the remaining traumatised dentition (x7) in the mouth.

9. Dr Luma Amlau is an independent witness with no personal interests so as to make him biased about his report of the complainant. He is an expert witness. In my view his evidence is trustworthy, reliable and speaks for what his findings of the injuries sustained by the complainant. His evidence shows that the injuries sustained by the complainant were from a trauma which he described as the complainant was assaulted by being punched. I am satisfied that there was no need for a second opinion as submitted by counsel for both accused.

Thomas Pillar

10. The 2nd witness called to give oral evidence is Thomas Pillar, the complainant of this matter. His evidence is summarized in the following:

At about 8am on the 21st of December in 2009 the complainant was driving with his wife from Koki where they then were living. He was stopped at the road block manned by Officers of National Road Safety Council inclusive of the two accused in court whom the complainant identified as Willie Boi (1st accused) and Ikupu Iru (2nd accused)

The accused Willie Boi asked him for his driving licence which was in his back pocket and was reaching for it when the other accused he identified in court as Ikupu Iru (2nd accused) walked over to the left of his vehicle to check on his vehicle registration. The accused Ikupu Iru realized that the road worthy sticker had expired and shouted to the complainant saying: "you bloody stupid, your safety sticker had expired"

That he (complainant) was told to get out of his vehicle but hesitated to because he had been involved in previous incidents where he was assaulted by the police. At that point in time the accused Ikupu Iru punched him on his face.

He told both accused that his vehicle sticker expired the night before the 21st of December 2009. There was argument between the complainant and the two accused over the expired sticker even though he had explained to the two accused of his vehicle sticker having expired the night before was not accepted by both accused which made the complainant to tell them both that they were unreasonable.

11. At that point in time the accused Ikupu Iru punched the complainant in the front of his mouth, while he was punched on his nose by accused Willie Boi. The complainant was bleeding which caused a scene commotion drawing the attention of other people. Despite bleeding from his nose and mouth he was told by the two accused to move his vehicle to the side of the road.

12. That as he got into his vehicle and had already moved his vehicle the accused Ikupu Iru got into the vehicle. The complainant did not stop at the side of the road but kept driving even though he was told to stop by accused Ikupu Iru. The accused Ikupu Iru grabbed the complainant by the collar of his shirt and punched him twice on the left side of his face.

13. The complainant told the accused Ikupu Iru that he was taking him to the Police Station with him to have the matter solved. The accused Ikupu Iru then placed his hand on the auto transmission and shifted it back and forth trying to stop the vehicle. The complainant moved the auto transmission to driving and kept driving.

14. That because the complainant was bleeding heavily and could not drive any more he stopped his vehicle at the side of the road next to PNG Motors. The accused Ikupu Iru got out of the vehicle and ran back to where the road block was had.

15. The complainant remained in the vehicle for about 10 minutes bleeding and then drove to the Police Station after he had regained his consciousness to report the matter which led to the accused apprehended at the National Road Safety Headquarters. The complainant received medical treatment at Port Moresby General Hospital for the injuries sustained.

The Evidence by defence

Willie Boi

16. I now turn to the evidence of the accused Willie Boi (1st accused). His evidence is summarized as follows:

- That he is an officer of the National Road Safety Council and was one of the officers that manned a road block on the 21st of December in 2009 at two mile. That as the complainant approached the road block he noticed from the wind screen that the complainant's vehicle registration had expired.

- He told the court that there was a vehicle in front of the complainant's vehicle which was used to block the complainant from driving off. It is at this stage that the accused Ikupu Iru got into the vehicle, a Toyota Surf Forerunner blue colour and directed the complainant to put the vehicle engine off.

- He asked the complainant for the vehicle key but complainant refused to give him the key. He walked to the left of the vehicle to confirm the expiry of the registration. He confirmed that both the registration and the safety sticker had expired.

- He then called out to the other officer to establish whether that officer had the complainant's driving licence or not. He never got an answer because the complainant had driven off with the accused Ikupu Iru in the vehicle. He did not know what happened thereafter.

Ikupu Iru.

17. The evidence of Ikupu Iru is as follows:

That at the time of the alleged incident he was attending to another vehicle at the road block. He saw the complainant Thomas Pillar and asked to pull to the side of the road but refused to do.

He says that from previous experiences the complainant was known to have driven through the road blocks without being properly attended to. He got into the complainant's vehicle when it was parked at the side of the road.

While in the complainant's vehicle, the complainant drove off with him in the vehicle. He told the complainant to stop but the complainant refused to stop. He was in fear of his life that he punched the complainant twice on the face with his left hand so as to force the complainant to stop. He says that he placed his hand on the manual transmission and tried to stop the vehicle but did not succeed.

After punching the complainant the vehicle came to stop at the roundabout next to PNG Motors. He came out from the vehicle but because the complainant had sworn at him he broke the rear vision mirror of the complainant's vehicle.

Analysis of complainant's evidence

The complainant's evidence is very simple and straight forward that he had reached the road block when it was discovered by the two accused that his vehicle safety sticker had expired.

He says he was then verbally abused by the two accused. As a result of this abuse he was forced to get out of his vehicle by the accused Willie Boi and Ikupu Iru after he had enquired about the wrong he had done from the two accused persons. This further led to him told by one of the two accused to move his vehicle to the side of the road.

As he started the engine to get his vehicle to the side of the road, the accused Ikupu Iru got in. The complainant drove off with the accused Ikupu Iru in his vehicle. At that point of time the accused Ikupu Iru told the complainant to take the vehicle to the pounding station but the complainant refused and told the accused Ikupu Iru that he was taking him to the police station to settle the matter.

The complainant told the court that the accused Ikupu Iru shifted the auto transmission to reverse but the complainant shifted the auto transmission to normal and kept driving.

The accused Ikupu Iru then punched the complainant on the left side of his face twice, (complainant indicating around the jaw area). He was bleeding badly and had to stop at the roundabout next to PNG Motors. The accused got off and returned to where the road block was had.

The evidence clearly shows that there was argument between the accused and the two accused, Willie Boi and Ikupu Iru over the expired safety sticker and the vehicle registration.

Analysis of Medical Evidence

18. From the medical observation Dr Luma Amlau therefore diagnosed the complainant to have sustained:

- Multiple facial and dental soft tissue injuries.

- Partial subluxation of teeth 11, 21, 22, 24, 25 and 26.

- Lateral subluxation of tooth 27 and 28 from trauma.

- Associated headache and back injuries.

19. Furthermore Dr Luma Amlau also states that the complainant shall in fact suffer unnecessary pain and discomfort for the next couple of days and 100% premature loss of one permanent tooth, 80% damage to the upper left second molar tooth which showed a poor prognosis in terms of its long term survival and function.

20. In my view his evidence is very precise on the injuries sustained by the complainant, trustworthy, reliable and speaks for what his findings of the injuries sustained by the complainant.

21. The accused Willie Boi denied assaulting the complainant on the 21st December in 2010 at Two Miles during a roadblock manned by officers of the National Road Safety Council.

22. This appears to be a mere denial by the accused Willie Boi. There is strong evidence by the complainant that Willie Boi punched him on his nose causing him to bleed. The complainant cannot be lying about what the accused Willie Boi did to him at very close distance. There is evidence from Willie Boi that the incident of the 21st of December 2010 was not the first between the complainant and the officers of the National Road Safety Council.

Analysis of Evidence accused Willie Boi

23. There is evidence from Willie Boi that the complainant had on the previous occasions tried to evade roadblocks. Therefore it seems that on this occasion both accused wanted to really pin down the complainant. They did so by using a vehicle that was in front of the complainant's vehicle to block the complainant and ensuring the complainant did not evade the roadblock.

24. The accused also denied that there was no argument with the complainant but his co accused Ikupu Iru told the court that there was an argument with the complainant. This is admitted by the accused Ikupu Iru in Question15 and Answer 15 of his Record of Interview where he says 'there was a struggle with the complainant' and the two accused. Given the fact that both accused were together at that point of time, their evidence should be consistent.

25. The evidence of accused Willie Boi and Ikupu Iru does not show someone other than the complainant behave in the manner that the complainant did at the roadblock except for the complainant. The evidence of both accused is that the complainant was the main character at the roadblock on the 21st of December 2010.

26. The evidence also shows the accused Willie Boi was the first to approach the complainant at the road block by making signs to him to stop and asking him for his driving licence. The evidence also shows that accused Willie Boi opened the door of the complainant's vehicle attempting to pull him out of his vehicle but the complainant co operated with him and came out of his vehicle.

27. The complainant Thomas Pillar obviously could not be lying or mistaken in identifying the accused Willie Boi is the person that punched him on his nose causing it to bleed. The incident happened at about 8 O'clock in the morning and the complainant could not be lying or mistaken about the identification of Willie Boi being the person that punched him.

Analysis of Evidence of accused Ikupu Iru

28. The accused Ikupu Iru denied assaulting the complainant when he was stopped at the roadblock but admitted assaulting the complainant in the vehicle. He told the court, the reason he assaulted the complainant was because the complainant had provoked him.

29. At the time this accused was interviewed for the offence by the Arresting officer, there was never any suggestion by him that he was provoked. It is only during his oral evidence that the accused Ikupu Iru tried to justify why he assaulted the complainant by saying that he was provoked and was in fear of his life having been driven off by the complainant in his vehicle.

30. The accused Ikupu Iru told the court in his oral evidence that he used his left hand to punch the complainant. However at the time he was interviewed as recorded in Question 19 of his Record of Interview, which he signed, punched the complainant with his right hand.

31. The accused is obviously lying. I accept the evidence that the accused Ikupu Iru punched the complainant with his right hand which he admitted in his Record of Interview, which he signed and not his left hand which is a recent invention. The correct version is that he punched the complainant with his right hand several times.

32. Even if the accused Ikupu Iru raised the defence of provocation or self defence, such were never put to the complainant during his evidence in chief by the defence. This was put forward by accused Ikupu Iru during his oral evidence which I regard as recent invention. Nevertheless fearing for his life is not a defence in law. There can never be any other defences in law except for those that are stipulated by the law, nevertheless if one raises that as a defence of provocation or self defence it could be a mitigating factor.

33. All in all I am satisfied that the versions of the event as told by both accused in their oral evidence are recent inventions because they were never at one time put to the key witness of the State, the complainant so as to give him the opportunity to explain or rebut according to the rule set out in the decorated case of Browne-v- Dunn (1893) 6 ER 67.

The Elements

34. There are two elements in the offence of grievous bodily harm.

1. The accused did grievous bodily harm to the complainant and
   
2. The act to do grievous bodily harm was unlawfully done.
   

35. Section 1 of the Criminal Code defines "grievous bodily harm" to be:

1. Any bodily injury of such a nature as to endanger life; or
   
2. Any bodily injury of such a nature likely to endanger life; or
   
3. Any bodily injury of such a nature as to cause permanent injury to health; or
   
4. Any bodily injury of such a nature likely to cause permanent injury to health.
   

36. Counsel for the two accused rightly submitted that in establishing the two elements, it was held in the case of State-v- Carol Peter [2011] PGNC131 that to determine whether the first element is satisfied, reference must be made to the definition of grievous bodily harm in Section 1 of the Criminal Code. The second element is proven if there is no lawful justification or excuse for the accused's action. See State-v-Kaupa [2011] PGNC 28; N4258.

37. The questions that arise here are:

1. Did the accused Willie Boi and Ikupu Iru cause grievous bodily harm to the complainant, Thomas Pillar?
   

38. There is no doubt in my mind that the accused Willie Boi and Ikupu Iru assaulted the complainant Thomas Pillar on the 21st of December in 2010 at the roadblock at Two Mile and in the complainant's vehicle by the accused Ikupu Iru.

2. Did the assault on the complainant cause grievous bodily harm to the complainant Thomas Pillar?
   

39. I answer this as Yes. The 3rd definition of grievous bodily harm under Section 1 of the Criminal Code states: Any bodily injury of such a nature as to cause permanent injury to his health.

40. I am satisfied from the evidence of Dr Luma Amlau that Tooth 28 had to be removed under local anaesthesia because it was very loose as a direct result of the trauma received. It was prematurely lost as a direct result of the blow received when he got the punch on the left side of his face. This on its face is permanent injury to the complainant.

41. I am also satisfied that teeth 11, 21, 22, 24, 26 and 27 were slightly mobile or loose and tender to touch while tooth 27 (upper left second molar) was extremely sensitive and tender as it may have been heavily subjected to the amount of trauma sustained. This is also permanent injury to the complainant's heath.

42. Furthermore the defence raised by accused Ikupu Iru that he was in fear of his life is not a legal defence but rather a mitigating one. As regard to the accused Willie Boi, there is no defence available for him, but except for his blunt denial of committing the offence.

43. Having analysed the evidence in totality, I enter a verdict of guilty against Willie Boi and Ikupu Iru.

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