State v Johnson [2016] PGNC 192; N6379 (9 August 2016)

N6379

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 461 OF 2015

THE STATE

V

RAY JOHNSON

Kokopo: Anis AJ
2016: 21, 22, 25 & 26 July & 9 August

CRIMINAL LAW – accused charged with grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 - accused alleged to have cut the victim on the back of the victim's left elbow with a bush knife - accused pleaded not guilty and raised defence of self-defence under section 269 of the Criminal Code Act - credibility of witnesses considered - prosecution witnesses were drunk at the material time - consumption of homebrew which started from the previous day to the next day and time of the incident - prosecution witnesses evidence not credible or reliable - defence witnesses evidence credible - prosecution evidence established all but one of the elements for the offence of grievous bodily harm that is 'who unlawfully' - prosecution evidence insufficient to negate the defence of self-defence - defence of self defence sustained - accused acquitted of the charge of grievous bodily harm

PRACTICE AND PROCEDURE – elements of grievous bodily harm under section 319 of the Criminal Code Act discussed - definition of the term 'grievous bodily harm' under section 1 of the Criminal Code Act discussed

PRACTICE AND PROCEDURE – defence of self-defence under section 269(1) & (2) discussed

Facts

The accused allegedly cut and wounded a victim on his left arm with a bush knife. At the time of the incident, the victim and his friends were under the influence of alcohol. The victim said the accused charged at him with his bush knife for no good reason. The accused on the other hand said it was the victim and his brother who had attacked him. He said he defended himself, and in the process wounded the victim. The accused raised the defence of self-defence.

Held

1. The case law shows that the elements of grievous bodily harm may vary but not to an extent outside the confines of section 319 of the Criminal Code Chapter No 262. The two main elements are who unlawfully and does grievous bodily harm.
   

[Cases considered: State v. Joe Ngotgnot and Eremas Matiul (2016) N6306; State v. Elsie Wabi (2009) N3662; State v. Norman Kukari (2009) N3635; State v. Daniel Kapen (2012) N4895 and State v. Nick Pinga (2010) N3852].

2. Self-defence is a complete defence.
   

[Cases considered: State v. Junior Paul Paina (2014) N5819; State v. Tony Tomong (2011) N5140; State v. Moses Kaupa (2011) N4258 and State v. Sailas Aita Anjipi (2007) N4963].

3. Courts in this jurisdiction have considered influence of alcohol detrimental to a witness's judgment or capacity to for example recall an event or behave, and courts should and must continue to take greater care when deciding whether to accept evidence from witnesses who are under the influence of alcohol.
   

(Case referred to: Ilai Bate v. The State (2012) SC1216).

4. The accused, although not obliged to, should disclose sufficient evidence to substantiate his defence. That is, evidence to show that:
   

(i) he was unlawfully assaulted and he did not provoke the assault; and

(ii) he felt at that time when he was unlawfully assaulted, a reasonable apprehension of death or grievous bodily harm; and

(iii) he also believed on reasonable grounds that there was no way out for him unless he uses force(s) or take action(s) to defend himself which could either kill or cause grievous bodily harm to his alleged assailants who were the Complainant and Timothy Alee.

(Cases considered: State v. Junior Paul Paina (Supra); State v. Silas Anjipi (Supra) and State v. David Yakuye Daniel (2005) N2869).

5. The prosecution has failed to negate the defence raised pursuant to section 269 of the Criminal Code Chapter No. 262.
   
6. The accused was acquitted of the charge of grievous bodily harm.
   

Cases Cited:

CR 1142 & 1153 of 2003 - State v. Richard Liri (2007)
Ilai Bate v. The State (2012) SC1216
R v. Nikola Kristeff (1967) No 445
State v. Daniel Kapen (2012) N4895
State v. David Yakuye Daniel (2005) N2869
State v. Elsie Wabi (2009) N3662
State v. Joe Ngotgnot and Eremas Matiul (2016) N6306
State v. Junior Paul Paina (2014) N5819
State v. Moses Kaupa (2011) N4258
State v. Nick Pinga (2010) N3852
State v. Norman Kukari (2009) N3635
State v. Silas Anjipi (2007) N4963
State v. Tony Tomong (2011) N5140

Counsel:

Mr H.Toke, for the State
Ms J. Ainui, for the Accused

VERDICT

9th August, 2016

1. ANIS AJ: The State (prosecution) charged Ray Johnson (the accused) for grievous bodily harm pursuant to section 319 of the Criminal Code Act Chapter No. 262 (Criminal Code Act). The injury sustained was a deep cut to the back left elbow of one Donald Alee (the Complainant). The accused denied the charge. He also raised a defence, that is, self-defence pursuant to section 269 of Criminal Code Act.

2. The trial on verdict concluded on 26 July 2016. The Court reserved its ruling to a date to be advised.

3. This is my ruling.

BRIEF FACTS

4. Let me summarise the prosecution brief facts herein: On 16 November 2014, between 7am to 8am, the Complainant, his brother Matthew Alee, Zerren Blakes and Ellen Barcela (the group) set down under a tree near the St Martin's Primary School at Ward 13 in Rabaul. The group set there and consumed alcohol. The accused, a ward counsellor, approached them. He removed a coffee punch container from the bag of Ellen Barcela. He slapped her several times on her face. The accused then approached the Complainant with a bush knife in his hand. The Complainant took out a kitchen knife and tried to defend himself. The Complainant reversed backward and in the process, he slipped over and fell down to the ground. The accused approached the Complainant, lifted his bush knife and cut the Complainant on his left arm. The Complainant bled heavily from the knife wound. The Complainant was taken to the Nonga Based Hospital where he received treatment.

WITNESSES

5. The prosecution called in two (2) witnesses:

(i) the Complainant; and

(ii) Jerren Blakes.

6. The defence also called two (2) witnesses:

(i) the accused; and

(ii) Henry Magem.

EXHIBITS

7. The prosecution tendered these documents without objection:

Exhibit No	Description	Date
P1	ROI of Ray Johnson, Pidgin & English versions	11/12/14
P2	2 x Coloured Photographs showing knife wound	Undated
P3	Medical Report by Doctor J Nuli	20/11/14
P4	Medical Report by Doctor Darryleen Aisi	27/03/14

ISSUES

8. I set out the issues herein:

(i) Whether the wound sustained on the left arm of the Complainant constituted 'grievous bodily harm' as defined under section 1 under the Criminal Code Act;

(ii) If so, whether the defence has established its defence, that is, 'self-defence' and if so whether the prosecution has negated or disproved it beyond reasonable doubt;

(iii) Subject to the above, whether the accused should be found guilty as charged.

ADMISSION

9. I firstly refer to Exhibit P1. It is the Record of Interview (ROI) conducted on the accused on 11 December 2014. It was tendered by consent. I find the evidence properly before this Court for consideration.

10. The accused admits in the ROI that he cut the Complainant on his hand with his bush knife on the date in question. Let me read questions 31 and 32 together with their answers herein:

Q31: You saw that they were surrounding you and fighting so what did you do?

Ans: I had a basket and in it there was a bush knife so I took it out and chopped the hand of Donald when I saw that they were meaning business and will cause serious injury to me. Purposely I did it for self defence.

Q32: This is the bush knife you used to chop the hand of Donald. What will you say on this?

Ans: That's the bush knife I used (it). I brought (it) to the police station.

11. At the trial, the accused said he could not recall the moment when he actually cut the Complainant on his left arm. Despite pressed with questions on point during cross-examination, the accused maintained that he could not recall the exact moment when he cut the Complainant. The accused said he only learnt of it sometime later.

12. At this stage of my judgment, I find as a fact, that the accused had cut the Complainant on his left arm. I also find as a fact that the accused knew he cut the Complainant at that time.

LAW - GRIEVOUS BODILY HARM

13. Section 319 of the Criminal Code Act reads:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

14. I note that I have just found the accused responsible for wounding the Complainant. That of course does not relinquish the burden of proof required of the prosecution herein, that is, to prove beyond reasonable doubt that the accused had committed the offence of grievous bodily harm.

15. To begin with, let me set out the elements of the offence grievous bodily harm:

• person(1)
• who unlawfully(2)
• does grievous bodily harm(3)
• to another(4)

(Numbering is mine)

16. Now, I have looked at the case law. It shows that the elements of grievous bodily harm vary in some cases, but not to an extent outside the confines of section 319. Regardless, the two main elements are who unlawfully and does grievous bodily harm [See cases: State v. Joe Ngotgnot and Eremas Matiul (2016) N6306; State v. Elsie Wabi (2009) N3662; State v. Norman Kukari (2009) N3635; State v. Daniel Kapen (2012) N4895 and State v. Nick Pinga (2010) N3852].

17. To succeed with a conviction, the prosecution must prove all four (4) elements beyond reasonable doubt. I note here that the 1st and 4th elements are undisputed. The accused is the person the prosecution alleged committed the offence, and the Complainant is the person who was wounded. The two remaining elements which are contested are (i) the second element that is who unlawfully and (ii) the third element that is does grievous bodily harm.

18. Let me firstly address the third element does grievous bodily harm. The term 'grievous bodily harm' is defined under section 1 of the Criminal Code Act. It states and I read:

"grievous bodily harm" means 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;

(Underlining is mine)

19. In summary, the term 'grievous bodily harm' means:

• any bodily injury(1);
• that endangers or likely to endanger life(2); or
• cause or is likely to cause permanent injury to health(3).
  

(Numbering is mine)

20. My reading and understanding of the provision is that the first element is mandatory and it must be proven together with either the second or the third element, if an injury is to be legally regarded as or constitute 'grievous bodily harm'.

21. Looking at this case, the Complainant's wound on his left elbow is obviously a bodily injury. This is evident in Exhibit P2, Exhibit P3 and Exhibit P4. During the trial, the Complainant showed to the Court a scar at the back of his left elbow. He told that Court that the scar was caused by the wound he had received at the material time. I accept the evidence concerning proof of the element 'bodily injury'. Did the wound cause a permanent injury to the Complainant's health? I think the answer to that may be found in Exhibit P4. Let me read on from paragraphs 2 and 3 of the letter from Doctor Aisi herein:

He is now requesting a final report of his current health. Upon review on 8/4/15, he is otherwise well. He is unable to flex or extend at the left elbow joint. He is unable to move his 4th and 5th fingers on his left. A sign of left ulna nerve injury.

He is otherwise stable but his only problem now is he has not regained full function of his left upper limb due to the injuries he sustained last year.

22. The Complainant has lost control of his left ring and index fingers. He has also lost full mobility to his left elbow. These are permanent injuries. I am satisfied the Complainant has suffered and will continue to suffer, permanent injuries to his health.

23. With my finding, the prosecution has proven that the wound that had been inflicted by the accused on the Complainant's elbow constitute grievous bodily harm within its definition under section 1 of the Criminal Code Act.

24. I now turn to the second and final element for the offence of grievous bodily harm, that is the element who unlawfully. Did the accused unlawfully commit grievous bodily harm when he wounded the Complainant at the material time? I will discuss and answer this separately below. My answer of course will depend on my finding on the defence raised by the accused, that is, self-defence.

LAW - SELF DEFENCE

25. Self-defence is a complete defence (see cases: State v. Junior Paul Paina (2014) N5819; State v. Tony Tomong (2011) N5140; State v. Moses Kaupa (2011) N4258 and State v. Sailas Aita Anjipi (2007) N4963). It is set out under section 269 of the Criminal Code Act as follows:

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 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.

(Underlining is mine)

26. In my opinion, the sections in the provisions I have underlined above apply and are relevant for this purpose. I say this because if one uses a bush knife to attack, fight or defend himself or herself, death or grievous bodily harm are two realistic predicted outcomes. And I note that I have already found that (i) the accused had wounded the Complainant at the material time and (ii) the wound fits the definition of grievous bodily harm.

27. Now, with backing from the case law [See cases: State v. Junior Paul Paina (Supra); State v. Silas Anjipi (Supra) and State v. David Yakuye Daniel (2005) N2869], I must say that the accused, although not obliged to, should disclose sufficient evidence to substantiate his defence. By that, I mean evidence to show that:

• he was unlawfully assaulted and he did not provoke the assault; and
• he felt at that time when he was unlawfully assaulted, a reasonable apprehension of death or grievous bodily harm; and
• he also believed on reasonable ground that there was no way out for him unless he uses force(s) or take action(s) to defend himself which could either kill or cause grievous bodily harm to his alleged assailants who were the Complainant and Timothy Alee.
  

28. The prosecution of course retains the ultimate duty to this Court on this point and that is to disprove or negate the said defence beyond reasonable doubt. In support, I refer to the case of R v Nikola Kristeff (1967) No 445. Frost J states and I read:

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.

CONSIDERING THE EVIDENCE

29. Let me now examine the sworn evidence.

30. Most of the material facts attested to by all the witnesses appear consistent to the point after the accused had slapped Ellen Barcela three (3) times on her face. What happened after that is what this Court must find out. Having said that, I note two contested facts alleged by the defence witnesses before what followed after the accused had slapped Ellen Barcela. Firstly, the defence witnesses say that Zerren Blakes ran away from the scene before the incident occurred. Secondly, the defence witnesses say that as they approached the group, the Complainant slipped the alcohol container into Ellen Barcela's bag. I will discuss these together with the other contested facts herein.

31. Let me begin by setting out the relevant facts, that is, facts admitted by the witnesses themselves, or facts that are undisputed and identified by the Court, or the facts that I have already made a finding on:

• the accused used his bush knife to cut the Complainant on his left elbow at the time of the incident
• the accused knew at that time that he cut the Complainant on his left arm
• the group consumed alcohol the previous night and they continued right through till the next morning and up to the time of the incident
• in the morning in question, the group set next to St Martin's Primary School yard and consumed alcohol
• the accused and Henry Magem approached the group
• the accused first approached Ellen Barcela, put his hand into her bag and removed a plastic container containing alcohol
• the accused slapped Ellen Barcela three (3) times on her face
  

32. I summarise the relevant disputed facts as recalled by the each witness herein:

• Donald Alee (complainant, prosecution witness) recalling the incident: He said after the accused had removed the coffee punch container and had slapped Ellen Barcela three (3) times, the accused was the first to removed his bush knife from his basket and walked towards him. He said the length of the bush knife of the accused was about 80 to 90 centimetres. He said he thought about his safety because about a month ago the accused cut his brother Timothy Alee. He said he took out a small kitchen knife to defend himself. He said the length of the kitchen knife was about 30 centimetres. He said he defended himself and reversed back facing the accused. He said as he was reversing back, he slipped and fell to the ground. He said the accused lifted his bush knife and cut his left arm. He said Timothy Alee broke a tree branch at that time and tried to fend off the accused from the attacking him. He said after he was cut, he fell unconscious there and was later taken to the hospital.
  
• Zerren Blakes (prosecution witness) recalling the incident: He said after the accused had removed the coffee punch container and had slapped Ellen Barcela three (3) times, the accused pulled out a bush knife from his basket and pointed it at Donald Alee. He said Donald Alee had a kitchen knife, which he took out to defend himself. He said the accused aimed the bush knife at Donald Alee. He said Donald Alee reversed, stumbled and fell to the ground. He said when Donald Alee was lying on the ground the accused chopped him on his left arm with the bush knife. He said after he saw what had happened he was scared so he ran off from the scene. During the time of the attack, he said Timothy Alee tried to defend Donald Alee. He said Timothy Alee broke a tree branch and used that to try to fend off the accused.
  
• Ray Johnson (accused, defence witness) recalling the incident: He said he and Henry Magem walked towards the group from Henry Magem's house. He said from about 50 meters or so, the place was clear and he said the group could see them approaching them. He said about a month or so ago, there was awareness in his ward against consumption of homebrew. He said he was the lead organiser of the said event. He said consumption of homebrew has become a real issue in the community, which was why they had conducted the said awareness. He said they were still walking towards the group when he saw Jerren Blakes stood-up and ran away. He said as they were getting closer, he saw Donald Alee pushed a homebrew plastic container into Ellen Barcela's bag. He said when they arrived at the scene he called out to the remaining three (3) members of the group to remain seated. He said he walked straight to Ellen Barcela and found the container of alcohol in her bag and removed it. He said he slapped Ellen Barcela three (3) times. He said the alcohol in the container he retrieved from Ellen Barcela's bag was homebrew and not Coffee Punch. He said he knew what a home brew looked like. He said he then told Donald Alee, Ellen Barcela and Timothy Alee that he had evidence of them consuming homebrew. He said he told them to follow him to the police station. He said he also told them that because he had evidence of homebrew, the three (3) were all going to jail for that. He said that was when Donald Alee pulled out a short bush knife he had with him and started attacking him with it. He said Donald Alee's brother Timothy Alee also broke a tree branch and attacked him. He said they attacked him from his left and his right. He said Donald Alee swung his bush knife four (4) times at him. He said he had his bush knife in his basket, which he was carrying at that time. He said after the second swing, he reached into his basket and grabbed his bush knife. He said he thought at that time that they were going to kill or seriously injure him. He said he threw away his basket and held his bush knife on one hand and the homebrew container on the other hand. He said he defended himself with his bush knife. He said he panicked and was confused because both men were drunk, their eyes were red, and they were attacking him for no reason. He said he paid attention towards Donald Alee because he was the one with the bush knife who was trying to cut him. He said he could tell at that time that both men were serious in trying to cause serious injury to him. He said Donald Alee fell to the ground. He said he turned to Timothy Alee who was hitting him with the tree branch and he defended himself. He said Donald Alee stood up and the two men ran away from him. As they ran away, he said they told him to wait because they said they would return. He said from there, he took Ellen Barcela, the container homebrew and contacted Ellen's husband. He said Ellen's husband arrived in a vehicle and they all drove to the police station where he said he reported the matter to the police. He said he could not recall the exact moment when he actually cut Donald Alee, that is, whether it was during the time when Donald Alee was standing or during the time when he fell to the ground. He said he only realised that he had cut Donald and the seriousness of his injury, from photographs that were shown to him during the ROI at the police station.
  
• Henry Magem (prosecution witness): He said whilst he and Counsellor Ray Johnson were walking towards the group, one of the persons in the group stood up and ran off. He said as they approached the scene, Counsellor Ray Johnson called out to the three (3) persons to remain seated. He said he saw Donald Alee took a plastic container and placed it into the bag of Ellen Barcela. He said when they arrived Ray Johnson went straight to Ellen Barcela and pulled out the plastic container. He said the container contained a white liquid substance. He said Ray Johnson slapped Ellen Barcela. He said Ray Johnson told them that he had evidence of them consuming homebrew and he told them to follow him to the police station. He said Ray Johnson also told them that they were all going to jail for their actions. Just then, he said Donald Alee pulled out a short bush knife and tried to stab Ray Johnson. He said Ray Johnson avoided the knife from Donald Alee. He said Donald Alee tried to stab Ray Johnson twice. He said Ray Johnson avoided that and reached down to grab a stone. He said Donald Alee ran back. He said Donald Alee returned back to attack Ray Johnson and tried to stab him the third time. He said Ray Johnson then took out his bush knife and the two fought with their knives. He said Timothy Alee broke a tree branch and assisted Donald Alee and they fought Ray Johnson. He said he could do little except to tell them to stop fighting. He said Donald Alee fell to the ground. He said Ray Johnson then fought with Timothy Alee. He said shortly after that, Donald Alee stood up and walked towards his house. He said he did not actually see the actual cutting, that is, the very moment Ray Johnson cut Donald Alee on his left arm. He said he was also not aware of the injury Donald Alee had sustained at that time. He said he only learnt of it sometime later during that day. He concluded by stating that it was Donald Alee who had attacked Ray Johnson in the first place.
  

33. The Complainant gave sworn evidence that the group had consumed alcohol since the previous day. He said they drank all night from the previous day right through to the morning and up to the time of the incident. The prosecution second witness Jerren Blakes confirmed this fact. During cross-examination, the defence put to the Complainant that they drank homebrew from last night till the morning of the incident. The Complainant in response said the group drank beer the previous night and in the morning, they consumed the alcohol Coffee Punch. During examination in chief, when the Complainant was asked how drunk he was that morning, he said he could walk and see who was walking towards him. He said his mobility was fine and he could see properly at that time. During cross-examination, the defence put to the Complainant that he was the one who pulled out a bush knife and attacked the accused first. The Complainant denied that. The defence put to him that he could not have known because he was too drunk at that time. In reply, the Complainant said that even though he drank until the next day, he could recall what happened.

34. I find that hard to accept. I find that the Complainant is not a credible witness. It has nothing to do with his demeanour in Court. But it has everything to do with his state of mind at the time of the incident. I am very mindful of the fact that the witness was drunk or that by the time of the incident, he had already consumed a lot of alcohol. He had been drinking alcohol since the previous day. The witness admits in Court that he was drunk that morning. It is therefore reasonable to say or assume that this witness's state of mind at the time of the incident was likely to be impaired. It is also highly possible that he may have forgotten things that happened that day. And the witness, it seems, may not have recalled what actually happened on the morning in question. The witness, at the trial, may have been in no position to know whether it was he that attacked the accused at that time or whether it was the accused who had attacked him first.

35. Courts in this jurisdiction have considered influence of alcohol detrimental to a witness's judgment or capacity to for example recall an event or behave, and courts should and must in my opinion, continue to take great care when deciding whether to accept evidence from witnesses who are under the influence of alcohol. Let me point, as an example, to what the Supreme Court in the case Ilai Bate v. The State (2012) SC1216 has said. I read at paragraph 21 of the judgment:

First there was clear evidence that the State witness was intoxicated. He testified that he had been drinking at the Cameron Club since the afternoon of 4 May. The incident leading to the death of the deceased occurred at 2.00 am on 5 May, so the evidence was that the State witness had been drinking for a considerable period, in the order of eight to twelve hours. He was according to his evidence involved in three separate but closely connected violent incidents, first with the applicant’s brother, secondly with the applicant and finally he was present when the deceased was struck with the crowbar. A reasonable inference to draw from this is that he was quite drunk and that this would have impaired his capacity to identify the deceased’s attacker and to recall accurately what happened.

(See also case: CR 1142 & 1153 of 2003 - State v. Richard Liri (2007) at paragraph 8)

36. I turn to the sworn evidence of witness Zerren Blakes. He denied during cross-examination that he ran away early when the accused and Henry Magem approached from a distance and their claim that he did not see the incident. In examination in chief, he was asked when they started drinking. The witness said the group started consuming alcohol the previous night at another location, and continued until the morning of the incident. During cross-examination, the defence put to the witness that that morning the four (4) of them were "quite drunk" to which witness answered "yes". But the witness denied when the question was put to him that they actually consumed homebrew and not Coffee Punch or beer. The defence put to the witness that he would not have known what happened because he was too drunk at that time. In response, the witness said even though he was drunk, he was able to see what had happened before he fled the scene.

37. I find that witness Zerren Blakes is also not a credible witness. Again, I give the same reasons I gave earlier concerning the sworn evidence of the Complainant. More than that, I also find as a fact that this witness ran away and was not present at the time of the incident. I accept the evidence on point adduced by the defence witnesses. I also note that this witness's evidence on point was not expressly corroborated by the Complainant.

38. On the contrary, I must say I find the evidence of the accused credible, reliable and accurate on the contested facts. He is the ward counsellor of Ward 11, Rabaul Local Level Government. He is a person of standing in his community. I find his evidence in the ROI that is Exhibit P1 consistent with his sworn evidence. I find that he was honest both at the time of the incident as he had stated in his ROI as well as whilst giving sworn evidence in Court. In his ROI, he said that after the incident, he went straight to report it at the police station. He took with him Ellen Barcela and the container of homebrew. He also surrendered the bush knife, which he had used to cut Donald Alee with. I think there were misunderstandings whilst the accused was cross-examined. I think the important point the accused said at the trial was that he could not recall the actual swing from his bush knife that had inflicted the wound on the Complainant's left arm. He did not deny cutting the Complainant. Secondly, he said he did not realise how serious the injuries were until when he was shown the photos at the police station.

39. Witness Henry Magem is the Headmaster of St Martin's Primary School. This witness is also a person of standing within the community and his school. I find the witness evidence to be credible and reliable. The witness's account of what happened corroborated with what the accused had said. There were some variations in his evidence. Firstly, he said that at some point in the attack by the Complainant on the accused, the accused bent down to pick up a stone, which for a moment caused the Complainant to back away. Secondly, the witness said it was after the third attempt by the Complainant to stab the accused that caused the accused to grab his bush knife from his basket to defend himself. I recall that the accused said that it was from the second attempt of a total of four (4) swings that he retrieved his bush knife from his basket to defend himself. These, in my opinion, are minor mistakes but I think they are honest mistakes based on what the two men had recalled. The accused was attacked suddenly by these two men and he said he panicked. I do not think that he would have sufficient time to find a note pad to write down what was happening to him. Because he panicked and was under pressure at that time, it is not unreasonable to expect that he may have missed some details of what had happened. It seems in this case that he has and witness Henry Magem has filled in these two details.

FINDING

40. I firstly find that the group had consumed homebrew, to be precise, illegally homemade alcohol, at the time of the incident. I accept the defence evidence on point. I find that both prosecution witnesses either did not tell the truth because they were prepared to lie, or because they did not know the truth because they were both drunk at that time. When I say the truth, I am particularly referring to the actual attack and the question that is "Who attacked who?" There seems to be a clear or logical motive for not telling the truth on the type of alcohol the group had been consuming before the incident. I think Donald Alee and Zerren Blakes refused to tell the truth to the Court, to improve their story, or cover up what appeared to have been an illegal activity the group had engaged themselves in, at the material time before the incident. I ask myself this: How would it sound if Donald Alee and Zerren Blakes were to tell the Court that they had been drinking this illegal alcohol all night and into the morning before the incident occurred? The next damning evidence against them is this: It is not disputed that the accused pulled out the alcohol plastic container from Ellen Barcela's bag. Both the accused and Henry Magem gave evidence that earlier on they saw Donald Alee shoved the alcohol container into Ellen Barcela's bag. I ask myself this: If they were consuming Coffee Punch, which is a legalised alcohol brand, why would they decide to hide it in Ellen Barcela's bag when the accused and Henry Magem approach them? The logical conclusion in my opinion is that they were consuming an illegal substance in this case homebrew, which was why they tried to hide it from the accused and Henry Magem.

41. Secondly, I find the prosecution witnesses evidence to be unreliable. I have direct and undisputed evidence that both prosecution witnesses consumed alcohol non-stop from the previous day to the next morning immediately before the incident. And I have also found that the group consumed homebrew at the material time. In addition to my finding that both prosecution witnesses were drunk and most likely had impaired memories of what may have happened that day, I have also ruled out witness Zerren Blake’s evidence of his account of the actual incident. I found that he ran off from the scene and did not see what happened. That being the case, the prosecution witnesses were reduced to only one which was the Complainant.

42. My third finding is based on both common sense (logic) and evidence. After the accused removed the homebrew container and slapped Ellen Barcela three times on her face, he told them to accompany him to the police station. It does not make sense to me that after the accused had told the Complainant, Timothy and Ellen to follow him to the police station, that he would from that point, pull out his bush knife for no reason and charge at the Complainant. It does not add up or make illogical sense. Given the accused's standing in the community and particularly his role as a ward councillor for close to 15 years, it seems like a ridiculous suggestion that the accused would without any reason, charge at the Complainant in the manner as portrayed by the prosecution witnesses. The said claim it seems would fit someone who is crazy or someone bested with unsound or unstable mind at that time. With respect, the only persons who could have easily fit such a description at that time wound have been the Complainant and his group. And I note as a fact that it is not uncommon that people do go crazy or lose their state of mind if they consume this illegal drink called homebrew, or otherwise by just consuming too much alcohol without regard to one's personal health or safety.

43. I find that the Complainant Donald Alee was the first person to attack the accused with a bush knife. I find that his brother Timothy Alee broke a tree branch and assisted his brother and together they attacked the accused. I find that the accused defended himself with his bush knife. In the process, I find that the accused cut Donald Alee on the back of his left elbow. I find that both Donald Alee and his brother ran away at that time after the incident. I find that the accused then apprehended and took Ellen Barcela to the police station with the homebrew container at that time. I find that the accused reported the matter and incident to the police and he surrendered his bush knife.

44. I am satisfied the defence has established the requirements of self-defence under 269(2) (a) and (b) of the Criminal Code Act. In summary, I find that the accused had caused grievous bodily harm to the Complainant by cutting him on the back of his left elbow. I find that the accused believed at that time that his life was in real danger in that he thought that he would be killed or seriously injured by the Complainant and his brother which was why he used his bush knife to defend himself and in the process wounded the Complainant. The accused evidence on point in his ROI and his sworn evidence were consistent, and I have accepted them as true and correct. I find the reasons sufficient in that they meet the requirements set out under section 269(2)(a) and (b) of the Criminal Code Act.

ABSENCE OF SECOND ELEMENT - WHO UNLAWFULLY

45. I note that the Court has so far found that the prosecution has proven beyond reasonable doubt the following elements of grievous bodily harm:

• 1st element that is "a person"
• 3rd element that is "does grievous bodily harm" to
• 4th element that is "another" person
  

46. The second element "who unlawfully" is the only element outstanding.

47. I find that the prosecution has failed to disprove or negate beyond reasonable doubt the 2nd element who unlawfully. Although I have found that the Complainant had suffered grievous bodily injury at the hands of the accused, I uphold the accused defence herein, that is, the accused had caused grievous bodily harm to the Complainant but he did so in self-defence.

48. Given that I have discarded witness Zerren Blakes evidence on the crucial point which was who assaulted who, the prosecution was left with just the sworn evidence of the Complainant. The serious problem this Court had with the Complainant's sworn evidence was the fact that the Complainant had consumed too much homebrew at the time of the incident. This Court has found this fact as the main factor causing it to give less or no weight to the Complainant's evidence. I note that even if the Court were to accept witness Zerren Blake’s evidence on point, it would also suffer the same fate as the Complainant's evidence. The Court found that both prosecution witnesses’ had consumed a lot of homebrew or alcohol at the time of the incident.

SUMMARY

49. Let me summarise my findings:

(i) The prosecution has failed to adduce credible evidence before this Court;

(ii) The prosecution's two witnesses were not credible witnesses;

(iii) Based on admissions and evidence tendered by consent, the prosecution proved beyond reasonable doubt that the accused was responsible for causing the injury to the Complainant within the definition of 'grievous bodily harm' under section 1 of the Criminal Code Act;

(iv) The accused has established his defence namely self-defence under section 269(2) (a) and (b) of the Criminal Code Act;

(v) The prosecution was unable to disprove or negate self-defence as established by the defence, beyond reasonable doubt;

(vi) The prosecution has failed to establish the second element namely "who unlawfully" of the offence of grievous bodily harm under section 319 of the Criminal Code Act and as such the charge for the said offence against the accused cannot be sustained.

50. I refer to the issues raised and I answer them as follows: For the first issue whether the wound sustained on the left arm of the Complainant constituted 'grievous bodily harm' as defined under section 1 under the Criminal Code Act, my answer is "yes". In regard to the second issue If so, whether the defence has established its defence, that is, 'self-defence' and if so whether the prosecution has negated or disproved it beyond reasonable doubt, my answer is "the defence has established its defence of self-defence, but the prosecution has failed to disprove or negate the said defence beyond reasonable doubt." Finally, in regard to the final issue Subject to the above, whether the accused should be found guilty as charged, my answer is "no".

ORDERS OF THE COURT

Verdict: Not guilty

I further order that accused bail money be refunded forthwith.

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