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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR NO. 1187 OF 2010
BETWEEN:
THE STATE
AND:
VERONICA MANDILI KULIA
Accused
Mendi: Kassman J
2011: 13th & 14th December
2012: 9th November
CRIMINAL LAW – Grievous Bodily Harm – Self-Defence – Evidence does not suggest self-defence - guilty
Cases cited:
R v Pari-Parilla (1969) N527
R v Paul Maren (1971) N615
Paulus Pawa –v- The State [ 1981] PNGLR 495
Legislation cited:
Constitution Section 37(10)
Criminal Code Act c.262 Sections 269, 319
Evidence Act c.48 Section 12
Counsel:
Mr Joseph Waine, for the State
Miss Nelly Love-Kepo & Mr Jeffery Kolowe, for the Accused
DECISION ON VERDICT
9th November, 2012
4. It is also not disputed that the incident occurred at around 5pm on 29 March 2010 at the marital home. At that time, Jim and Veronica were experiencing marital issues and Jim had been away from the marital home for extended periods. One reason for his absence being he was away on duty as a member of the police mobile squad. Veronica complained Jim was engaged in affairs with other women but she never took her claims any further with police or to court.
5. It is admitted that Veronica was at home on 29 March 2010. Jim arrived at home from work duties at around 5pm. It was raining. Veronica and Jim were engaged in an argument soon after Jim arrived. Veronica and Jim attacked each other physically. The attacks and arguments took place in various parts of the house. In the course of the argument and physical attacks, Jim sustained cuts to the three middle fingers on his right hand. On examination at Mendi General Hospital the same day of the incident, Dr Nolpi Tawang, Director Medical Services confirmed in a medical report dated 15 April 2010 that the injuries sustained by Jim to the fingers on his right hand included fractures to his metacarpal bones 3rd and 4th digits.
6. There is dispute as to the place in the home where Jim sustained his injury and whether Jim used a bush knife in the confrontation.
7. Jim says he did not hold a bush knife at any time. After he arrived home, he was pruning the flowers in the garden in the back yard when Veronica came out of the house and started arguing with him. He walked away from her and she followed him into the family room where she then grabbed and squeezed his testicles and he hit her hand off. He then moved to the family room and she followed and again squeezed his testicles. He then walked out to the veranda and sat on a form. Veronica then retreated into the house and when he saw her returning with a bush knife he locked the front door. Veronica then walked out the rear door and returned up the front stairs and confronted him on the verandah while he was seated on the form. In that confrontation, Veronica swung the bush knife at him twice. Her first swing was aimed at and missed cutting his legs when he lifted his legs and the bush knife struck the floor. Her second swing was aimed at his neck and he lifted his right hand to fend off the bush knife and it struck his three middle fingers on his right hand. He then ran out of the house and secured a lift to the Mendi General Hospital. He now has a permanent disability from the loss of full use of the fingers on his right hand and suffers from scars and disfigurement.
8. Veronica says she was at home with Marylin Paul. When Jim arrived at home, he was intoxicated and in an aggressive mood. He was carrying two bags containing his clothes and he was holding a bush knife in his other hand. Jim dropped his bags in the room. They argued about Jim not coming home the previous night. She then took Jim's bags and put them on the veranda and told Jim to go back to where he was the previous night and he may return once he is sober. She then brought Jim's bags back into the house and while doing that, they both had a tussle over the bags in the living room. Jim then picked up his bush knife and hit her on her back several times which caused her cuts and bruises with loss of blood. She then picked up the other bush knife to defend herself and block or stop Jim from hitting her and in that process she cut Jim on his right hand with the bush knife she was holding. She did not mean to cut or injure Jim. She then got her bag to go to the hospital but instead went to Mendi Police Station
9. Veronica's eyewitness Marylin says she was in the house with Veronica when Jim arrived and also noticed Jim was intoxicated and in an angry mood. She was in the living room and saw both Veronica and Jim tussle over the bag and then Jim hit Veronica on her back with the blunt end of a bush knife several times. She tried to intervene and pleaded with Jim to drop the bush knife. She also saw Veronica picking up another bush knife which Veronica lifted to block the bush knife being swung by Jim and in the process Veronica cut Jim on his right hand.
10. Jim's eyewitness Hiob says he was standing on the veranda of a house opposite to the house of Jim and Veronica, a distance of six to ten meters away. He saw Veronica on the front verandah near the door as she walked towards Jim and he saw her lift her bush knife and cut Jim on his right hand. He saw Jim run down from the verandah and he saw Jim being given a lift in a police vehicle that took him to Mendi General Hospital.
11. I find it hard to believe that Jim did not at anytime use a bush knife in the course of the confrontation. He admits using a bush knife to prune the flowers so he clearly had possession of a bush knife at the start.
12. In my analysis of all the evidence and having considered the submissions for the State and the accused, I found greater certainty and credence in the evidence of Marylin and Hiob in determining who and what to believe as to the place in the home where Jim sustained his injury and whether Jim used a bush knife in the confrontation. Although Marylin admitted having a close relationship with Veronica and disliking Jim, I have no reason to doubt her evidence that both Veronica and Jim each held bush knives and struck each other several times on different parts of their bodies while standing in the living room.
13. Following that confrontation, Jim then walked out onto the Verandah. Then from there I have no reason to doubt the evidence of Hiob who saw Veronica on the verandah near the front door as she walked towards Jim and he saw her lift her bush knife and cut Jim on his right hand. He then saw Jim run down from the verandah holding or nursing his right hand with blood flowing from the cuts to the fingers on his right hand. This indicates that the blow from the knife swung by Veronica on the verandah had the most impact in that it elicited the most immediate reaction in Jim to flee the scene in search for medical attention. As opposed to this, their earlier threats and actions towards each other, with or without knives, were intended as threats and counter threats without intention to cause serious injury to the other. Despite the claims by Veronica that she sustained cuts to her back and hand including a cut vein on her wrist, she did not see the need to seek medical attention immediately but remained steadfast in her argument with Jim. After Jim was rushed to get medical attention, Veronica attended at the Mendi Police Station to lodge her complaint about the incident and the assaults on her at the hands of Jim. It is also noted Veronica did not produce a medical report on her injuries allegedly sustained.
14. Section 319 of the Criminal Code Chapter 262 provides:
" 319. Grievous bodily harm.
A person who unlawfully does grievous bodily harm to another person is guilty of a crime."
15. In Section 1 of the Criminal Code Chapter 262 "grievous bodily harm" is defined 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".
16. In swinging the knife twice at Jim as he was sitting on the verandah, I am satisfied that such actions were likely to cause permanent injury to Jim. The medical evidence of Dr Nolpi Tawang confirms that the injuries sustained by Jim to the fingers on his right hand included fractures to his metacarpal bones 3rd and 4th digits and I observed when Jim held up his right hand in court in the trial that he had serious disfigurement to the three middle fingers which clearly was a permanent injury.
17. I now need to determine whether Veronica was acting in self-defence when she walked to Jim as he sat on the veranda and when she swung the bush knife twice, the second time cutting Jim's fingers on his right hand.
18. Section 269 of the Criminal Code provides:
"269. Self-defence against unprovoked assault.
(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2) If –
- (a) The nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
- (b) The person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from from death or grievous bodily harm,
it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm."
19. Where the evidence suggests self-defence, the onus is on the State to show the absence of any one of the requirements of the section: R v Paul Maren (1971) N615.
20. The prosecution bears the burden of disproving self-defence where the evidence discloses self-defence as a defence: R v Parilla (1969) N527.
21. From my analysis of the evidence as stated above, I do not find that the evidence suggests self-defence. I agree with the submissions of the State in this regard. In particular I accept Hiob's version of events he witnessed and that is that he saw Veronica on the verandah near the front door as she walked towards Jim and he saw her lift her bush knife and cut Jim on his right hand. He then saw Jim run down from the verandah holding or nursing his right hand with blood flowing from the cuts to the fingers on his right hand. I repeat my finding that those actions and circumstances as witnessed by Hiob indicated that the blow from the knife swung by Veronica on the verandah had the most impact in that it elicited the most immediate reaction in Jim to flee the scene in search for medical attention.
22. Veronica and Marylin did not counter this evidence but merely dismissed it as being untrue. In cross-examination, Hiob remained steadfast in what he observed. Jim's evidence was also clear on this aspect and this was firmly corroborated by Hiob. Hiob was standing in close proximity. Hiob had no reason to lie to the court and he had nothing to gain from the evidence he gave in court. His demeanor demonstrated confidence in what he said and his recollection of events.
23. I also agree with the State submission that the raising of the defence of self-defence was a recent invention. I know an accused person is entitled to his right to remain silent as provided by section 37(10) of the Constitution which states:
"No person shall be compelled in the trial of an offence to be a witness against himself." This is reinforced by section 12 of the Evidence Act c.48 which states "A person charged with an offence is a competent but not a compellable witness himself in any legal proceedings in connexion with the offence with which he is charged."
24. However, as was said by Justice Andrew in Paulus Pawa v The State [1981] PNGLR 495 at 504:
"An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can be giving his own version of what happened. A person who claims to be completely innocent should give his explanation early as it could exculpate him notwithstanding his Constitutional right to silence. A witness to who seeks to have his evidence accepted as credible should also give his statement to the relevant authorities such as the police at the first available opportunity where a criminal charge is involved unless he has a very good reason not to do so."
25. Veronica did not speak of her actions as being in self defence of an attack on her by Jim at the time of the conduct of the record of interview by police and that was her first opportunity to do so.
26. As I find the evidence does not suggest self-defence, there is no defence to the charge and I find Veronica guilty of the charge of causing grievous bodily harm to Jim Kia ("Jim") on 29 March 2010, an offence under section 319 of the Criminal Code c.262.
27. I will now consider submissions on sentence.
__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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