State v Mission [2019] PGNC 97; N7803 (12 April 2019)

N7803

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1374 OF 2016

THE STATE

V

THERESIA MISSION

KOKOPO: Susame, AJ
2019: 15 March, 5, 6, 12 April

CRIMINAL LAW – offence – grievous bodily harm –s319 criminal code – defence of self-defence s.269- whether defence is available- evidence demeanour of witnesses and reliability of evidence – Browne and Dunn rule considered – defence of self-defence failed – conviction entered – accused guilty of the charge.

Cases Cited:
Papua New Guinea Cases

The State v Simon Ganga [1994] PNGLR 323
The State v Merriam [1994] PNGLR 104

Overseas Case:

Browne v Dunn (1893) 6 ER 67

Counsel:

Miss J Batil, for the State
Miss C Pulapula, for the Accused

DECISION ON VERDICT

12 April, 2019

1. SUSAME AJ: Accused was tried for offence of grievous bodily harm contravening s. 319 Criminal Code.
   
2. The offence is set out below:
   

319. GRIEVOUS BODILY HARM.

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.

3. Facts alleged are that complainant (Elizabeth Doni) had an argument with the accused and her mother between 3pm and 4pm on 6 April 2016. The accused and her mother swore at the complainant. Accused then got hold of a branch of a rain tree and swung it at the complainant. Complainant raised her left hand up and blocked it. Accused swung the branch second time and again complainant raised her right hand and blocked it. As a result the complainant received fractures on her two hands.
   
4. Statutory defence of self- defence against unprovoked assault provided in s 269 of the Criminal Code was pleaded. Whether the defence is available rests on finding on essential facts that are in dispute.
   
5. The defence is reproduced below.
   

“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.”

Evidence

6. For the State, evidence came from two principle witnesses, Elizabeth Mission and Ellison Doni. They both gave their own version of facts as best as they could recall from their memory. Included are documentary evidence tendered by consent and labelled numerically as exhibits. For the accused evidence came from her own oral testimony.
   
7. Oral arguments were heard. They have been considered.
   
8. It emanates from all of evidence certain facts are not at issue and which court accepts. Complainant (Elizabeth Doni) is the mother of Ellison Doni whose husband was in an affair with the accused. On the morning of 6 April 2016 Ellison had a confrontation with the accused as she was going to school. Both had a brawl. The brawl ended and accused got on a vehicle and left for school. She returned from school at about 3pm or 4pm. As she was walking home she came upon her mother and the complainant on the road away from their respective residence. They were discussing settlement of their daughters’ conflict with the Ward Committee instead of them fighting over it and getting hurt. The accused walked passed them and went up to their residence. At this point parties gave competing versions of facts. But another brawl ensued resulting in complainant receiving fractures to her 1^st digit of her right hand and 2^nd digit of her left hand. The medical report (exhibit P4) attest to that fact.
   
9. The fact accused had hit the complainant is not at issue. The issue relates to the manner in which accused hit the complainant. Accused stated she was in a crouching position on the ground being assaulted by everyone including the complainant. From that position she swung the branch over her should backwards to free herself. Accidently without her knowing the branch hit the complainant on her hands. State witnesses version is that accused approached her directly in front and swung the branch aiming at her head. Complainant raised her hands to protect her head and the branch hit her hands causing the fractures.
   
10. Complainant’s evidence is that she was talking with the accused’s mother on the road and the accused approached her armed with a small knife. Implying that accused had gone home and had walked down the road to fight her. Complainant said she removed the knife from her. Complainant then picked up stones and threw them at her and the children. Then she got hold of a dried branch of a tree which she described as half meter in length and 4 centimetres in thickness. She came running towards her and uttering the words to the effect “I will break your head with the stick and you will die and I will go to prison”. She blocked her head by placing both hands over her head (witness demonstrated). The stick hit her hands and she fell down.
    
11. Ellison, her daughter gave similar evidence. Accused went home, left her bag and got changed. She came down the road armed with a knife and stones. Her mother (complainant) removed the knife from her. Accused then threw stones at her mother. She was up at the house and heard the noise and came down and fought with the accused. Accused ran back to the spot where the rubbish are and picked up a rain tree branch size of her arm. She advanced at her mother same time saying “I will go to prison because of you.” She swung the branch at her mother’s head. Her mother raised her both hands over head (witness demonstrated). And her mother fell down unconscious. There may have been slight factual difference in their account which I consider not substantial to create serious doubts in my mind on essential facts. What comes out from their evidence is that the fight that afternoon occurred down on the road.
    
12. Court has examined closely the accused’s evidence. Her version is that the fight occurred within their premises or yard. Her evidence contains lot of detail facts. Without having to reproducing them, let me say this at the outset. Most of the facts were never put to the State witnesses and tested during cross-examination. It was more of an ambush giving no opportunity to the two State witnesses to respond to it.
    
13. That is a serious omission on the part of the defence counsel as it offends against the evidentiary rule in Brown v Dunn (1893) 6 ER 67. WIKIPEDIA explains the rule in these terms: “The rule entails that the one who cross-examines cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction.”
    
14. It is a serious omission as it affects the credibility and reliability of the evidence by the party challenging. (See The State v Simon Ganga [1994] PNGLR 323 & The State v Merriam [1994] PNGLR 104.)
15. In examination-in-chief accused said she was in a sitting or in a crouching position on the ground and all of them including the complainant were assaulting. She got hold of the branch and in her effort to free herself swung the branch backwards over her should (accused demonstrated). Accidently, the branch struck her hands. However, during cross-examination she altered her story. When suggestions were made to her she agreed she attempted to strike the complainant on her head. When the complainant raised her hands to protect her head the branch struck her hands causing the fractures. (Questions 23-25 & answers)
16. Was the accused acting in self-defence to put into operation the statutory defence found in s 269?
    

Demeanour of Witnesses

17. State’s evidence was more convincing and credible as compared to defence evidence. There were attempts by the defence counsel to get the witnesses to contradict their own evidence during cross-examination. Witnesses were not moved. To me they are reliable witnesses and they gave a clear logical account of what occurred during the brawl in the afternoon as best as they could recall. The facts accused came up with were recent just to make up a case. Under cross-examination she departed from her story and contradicted herself on essential facts that were at issue alluded to above.

Findings on disputed facts

18. Court finds on the evidence accused approached the complainant armed with a dry branch of a rain tree. She uttered the words to the effect she will kill her and she will go to jail, same time she swung the branch attempting to strike her on the head. Complainant raised her hands to protect her head and the branch landed on her hand, causing the injuries evidence in the medical report. She fell down because of the impact of the hit. At no time complainant threatened to assault her with a dangerous object or implement. Facts are isolated and do not establish that scenario. No arguments were advanced by the accused’s counsel on the particular defence. It follows that defence pleaded must fail.
19. The end result is that prosecution has proven its case. I have no doubt to enter a conviction. Court finds the accused guilty of the charge.

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