State v Gul [2021] PGNC 426; N9197 (30 August 2021)

N9197

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1033 OF 2017

THE STATE

V

JACOB GUL

Bomana: Sambua, AJ
2021: 24^th & 30^th August

CRIMINAL LAW – No case to answer application – charge – grievous bodily harm under section 319 of the Criminal Code Act Chapter 262 – first limb – whether all elements have been established – second limb – whether evidence is tenuous and unreliable and case to be stopped – accused admits assaulting victim in Record of Interview – no case to answer refused- accused has a case to answer.

Cases Cited:
State v Paul Kundi Rape [1976] PNGLR 96
State v Roka Pep (No 2) [1983] PNGLR 287

State v Ray John [2016] N 6379

Counsel:
Ms G. Gunson, for the state
Ms M. Worinu, for the Defendant

Ruling on No Case

30^th August, 2021

1. SAMBUA, AJ: The accused Jacob Gul was indicted to stand trial on a charge of grievous bodily harm under section 319 of the Criminal Code Act chapter 262.
   
2. The trial commenced at 9.30 am on Thursday the 19^th of August 2021. At the end of the State’s case the defence made a no case to answer application on the 24^th of August, 2021. I heard submissions from both parties and reserved my ruling to today (Monday 30^th August 2021) and here is my ruling.
   

Background of the case

3. The accused is a Probationary constable with the Royal Papua New Guinea Constabulary. On the date of the offence (12/11/16) the accused and other policemen were on a motorised patrol in a 25-seater bus at Vani Place, Gordons sometime between 2.00 pm and 2.30 pm.
   
4. The state’s allegation was that at that time the victim Edgar Ali had captured a mobile telephone thief and handed him over to the Police Officer who had attended to the commotion. He (victim) then followed the Police Officer to the bus when he was attacked and punched by the same Police Officer. As a result, he fell down and as he was attempting to get up, the Police Officer kicked him on his chin causing a penetrating wound on his chin.
   

No Case to Answer

5. The principles of No Case to Answer are stated in the case of State v Paul Kundi Rape [1976] PNGLR 96. There are two principles laid out in the case of the State v Paul Kundi Rape (supra). The first principle is where a submission of no case to answer is made, the judge examines the evidence as a question of law to determine “whether the evidence supports the essential elements of the offence”.
   
6. The second principle is where the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is a question of law to be carefully distinguished from the question of fact to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt.
   
7. In the case of the State v Roka Pep (No 2) [1983] PNGLR 287, it was stated that:
   

“The second principle is where a judge decides there is no case to answer, it has a discretion to stop the case at the close of all the evidence in appropriate circumstances, this discretion is exercisable where there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it”.

The State’s Evidence

8. The State’s evidence consists of sworn oral and documentary evidence.
   

Sworn Oral evidence

9. Edgar Ali (victim) is the second state witness. He is a 36 year old man from a mixed parentage of East Sepik and Central Province. He lives with his father, Robert Ali, who is a Police Officer and resides at the Gordon Police Barracks in the National Capital District.
   
10. On the 12^th of November 2016, he was at his father’s house at Gordon’s Police Barracks together with his cousin brother Abraham Ali. There was a small party to remove the mourning house when their niece, Georgina Gale, reported to them that a boy had stolen her mobile telephone handset.
    
11. Upon hearing that, he (Edgar Ali) was the first to go to the place where the alleged theft of the mobile telephone handset had occurred. There he got hold of the suspect of the mobile telephone handset theft and at the same time policemen in a 25-seater bus arrived and attended the situation.
    
12. The suspect was handed over to the Police Officer who attended to the situation. The suspected thief was escorted to the bus and placed inside the bus. However, when he (Edgar Ali) approached the bus and was peeping in, he was punched by a police officer, and he fell down. As he tried to get up, the same Police Officer kicked him with the boot he was wearing causing a penetrating wound on his chin.
    
13. He was unable to identify the Police Officer because the incident happened so fast. In court, he pointed to his chin where the police officer had kicked him. There was some sort of a scar or mark visible but not so clear because he (victim) had a dark skin complexion.
    
14. After the Police Officer kicked him and he suffered a penetrating wound to his chin, he was taken to the Pacific International Hospital (PIH) where he was treated. He was released 3 hours later after undergoing observation by the PIH hospital staff.
    
15. Dr John Tsiperau is the first state witness. He is a medical doctor by profession and has been working for over 20 years after graduating from the University of Papua New Guinea’s Medical School.
    
16. He has been with the Pacific International Hospital for the last 2 years in the Emergency Department together with Dr Manoj Rayan. Dr Manoj Rayan reports to him and he is currently on leave in India.
    
17. Dr John Tsiperau also stated that he is also the person in charge of the Business Records of PIH and as such he was aware of the Medical Report by Dr Manoj Rayan on the victim, Edgar Ali. Therefore, deposed an affidavit to have it tendered into evidence and to provide expert evidence on that Medical Report. The Medical Report was tendered and marked as Exhibit “B”.
    
18. In his oral evidence he described the wound as a penetrating wound which required a big force to cause such an injury. He also stated that falling on the grass or even on a rough surface like bitumen or cement surface will not cause such an injury. There must be a strong force used to cause such a penetrating wound.
    
19. Georgina Gale is the third state witness who gave sworn oral evidence. She told the court that she is 23 years old and of a mixed parentage of East Sepik and Gulf Province and resides at ATS (Air Transport Squadron) for 3 years now.
    
20. She told the court that on the morning of the 12^th of November 2016, after her mobile telephone handset was stolen, she argued with the suspected mobile telephone handset thief near the Gordons market area. After that, she went and reported to her uncles, Edgar Ali and Abraham Ali.
    
21. She further stated that when her uncle Edgar Ali heard that her mobile telephone handset has been stolen, he went out to investigate and confronted the mobile telephone thief in which a scuffle ensued, and he overpowered the mobile telephone thief.
    
22. At the same time a police 25 seater bus arrived and the mobile telephone thief was handed over to the policeman who attended and was placed inside the bus. She said that the victim Edgar Ali had followed the policeman and the mobile telephone thief to the bus. She was following closely behind.
    
23. As soon as her uncle Edgar Ali reached the bus, he was punched by the policeman and after he had fallen, the policeman kicked him with his boots on his (Edgar Ali) chin causing him to bleed from the wound he received as a result of that kick.
    
24. She said that from where she stood which was about 4 metres, she could clearly see everything. She denied seeing Edgar Ali attacking or struggling with the policeman. She was able to identify the accused and pointed him out in court as the policeman who punched and kicked Edgar Ali.
    
25. Robert Ali is the fourth state witness who gave sworn oral testimony. His evidence is not relevant in so far as the issue of assault and self-defence is concerned except to confirm that when he arrived at the scene, he confirmed the presence of the accused inside the 25 seater police bus.
    
26. Abraham Ali is the fifth and final state witness who gave sworn oral evidence. He is 41 years old from East Sepik and is employed by the Department of Finance for 15 years now.
    
27. He told the court that on the afternoon of the 12^th of November, 2016, he was at the scene when the policeman assaulted and kicked his cousin brother Edgar Ali. He identified and pointed out the accused in court as the policeman who punched and kicked the victim Edgar Ali.
    
28. He was standing some 15 metres (witness box to entrance door of Bomana court room) away when he saw the policeman punch and kick Edgar Ali. There was nothing obstructing his view. From where he was standing, he could clearly see the policeman punching and kicking Edgar Ali.
    

Documentary Evidence

29. Record of Interview dated 24/11/16 – Pidgin and English. Pidgin version Exhibit “A” and English version Exhibit “A1”.
    

In Question and Answer 12, the accused admitted his presence and assault on the victim Edgar Ali.

Question 12: Can you tell me what actually happened during that time?

Answer: During that time we were on police operation for FIFA under 20 women’s soccer World Cup and we did our patrol to S/C Gideon Ulapapik’s house at Gordons Police Barracks and got an esky and got some cold water for drinking and we were driving out from the Police Barrack where we saw some drunks assaulting some members of the public at Vani Place and we saw that they were in possession of offensive weapons such as screw drivers, off cut planks so we stopped the bus on the side of the road and went over to where the commotion was and saw that they were bashing up a suspect that they accused of stealing a mobile phone.

We stopped the group from assaulting the suspect and told them that the suspect was in Police hands now we escorted him back to the police bus and got him into the bus and shut the door to the bus.

From there the complainant now I identified to be Edgar came and told us that you policeman always lie and take suspects in and let them go free later.

Let him come down and we will deal with him properly. I could see that Edgar was drunk as his eyes were red and his speech was slurred and his movements were not steady, so I ordered him to leave as he was already under Police Custody.

He did not listen to and he wanted to push the door of the bus and come in and at the same time I saw that he was holding a Philips screw driver with a yellow handle so I got off the bus and tried to remove the screw driver from his hand. I struggled with him and I got a cut on hand I saw that he was so aggressive so the very hard out of his hand he fell on the edge of the cement and got his injuries, I did not use other force to assault him.

I got back into the bus and sat with the suspect. From there all the other drunkards charged and started to assault us and Edgar’s father came and told us that he will deal with us good and proper. When he said that the crowd with some of the drunkards and some of her children came and attacked us in our uniforms. They even broke the rear lights of the Police bus.

From there he told us to report to the nearest Police Station which was Gordons Police Station and he will also bring his son down.

We went down to Gordons Police Station and waited there however he did not bring his son but he himself (Mr Robert Ali) came down to the station.

We thought he was going to bring the complainant of the lost phone but that to did not eventuate. We later send a message card to the Police Operations Room and reported the matter.

30. Medical Report, Exhibit “B” tendered through Dr John Tsiperau attached to his affidavit.
    

TO WHOMEVER IT MAY CONCERN

27 years old male EDGAR BANATTI ALI was brought into Pacific International Hospital Emergency Department by his relatives on 12/11/16 at around 4 pm with history of physically assaulted by Police Officer. History of was kicked on the face with a boot leg causing laceration on his jaw with bleeding.

Time of Incident 2 pm – 2.30 pm. 12/11/16

On initial Examination on arrival

• Laceration to his jaw with excessive bleeding
• 4 cm x 2 cm x 3 cm laceration to his jaw extending to oral cavity
• No history of loss of consciousness
• No other injuries
• Vitals were stable – BP124/65, Pulse 92/min, Spo2 – 99% RA
  

Statement of Samuel Koy – Exhibit “C”

31. Samuel Koy is a Senior Constable with the Royal Papua New Guinea Constabulary attached to the Forensic Science Centre, National Capital District. He has been doing crime scene duties for 12 years.

32. On the 14^th of November 2016, he was requested by Sergeant Aaron Silas of Gordon Police Station to take photograph of a Grievous Bodily Harm victim Edgar Ali. He took 3 photographs. Photographs 1 and 2 on one A4 sheet and photograph 3 on one A4 sheet.

33. In his statement at paragraph 5, he stated that

“the victim sustained lacerated lower lips with six (6) clinical stitches to the exterior and five (5) clinical stiches to the interior of the lower lips. These are shown in the photographs labelled 1 to 3”

Statement of Aaron Silas, Exhibit “D”

34. His statement was tendered by consent. He is a Police Sergeant attached to Gordon Police Station and also resides at Gordon Police Barracks. He investigated the assault on the victim Edgar Ali.

Issue

35. There are two issues here to be determined as per the principle of No Case No Answer is concerned as stated in the case of State v Paul Kundi Rape (supra) and the case of State v Roka Pep (No 2) (supra).

36. The first one is whether the evidence adduced by the state from its witness and the documentary evidence establishes all the elements of the charge of grievous bodily harm and the second one is whether the evidence so far adduced by the state is insufficient and lacking in weight that the court should exercise its discretion to stop the case here and not to call the accused to give evidence.

37. To answer the first issue, let’s look at the elements of grievous bodily harm. The crime of grievous bodily harm is created by section 319 of the Criminal Code Act chapter 262.

Section 319 states:

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

And grievous bodily harm is defined in section 1 as;

“any bodily injury of such a nature as to endanger or be likely to endanger life of to cause or be likely to cause permanent injury to health”.

The Oxford Advanced Learners dictionary defines grievous as

“serious or severe wound”.

The same Oxford Advance Learners dictionary defines grievous bodily harm as

“a serious injury caused by a criminal attack.”

38. After discussing the crime of grievous bodily harm under section 319 of the Criminal Code Act and its definition under section 1 of the Criminal Code as well as the definition in the Oxford Advance Learners dictionary, in my view the injury suffered by the victim Edgar Ali would easily fall into the definition of grievous bodily harm which is supported and corroborated by the Medical Report tendered together with the affidavit of Dr John Tsiperau and marked as Exhibit “B” and the three (3) photographs that were tendered and marked as Exhibits “C1” and “C2”.

39. Although section 1 defines grievous bodily harm as any 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, the qualification for our present purpose is that it is likely to endanger life and likely to cause permanent injury to health.

40. In my view the injury need not be life threatening or will cause permanent injury, as long as it is a serious or a severe injury from an unlawful or a criminal attack as defined by Oxford Advance Learners dictionary.

41. So the elements of the charge of grievous bodily harm are as stated in the case of State v Ray Johnson [2016] N6379 by Anis AJ (as he then was)

“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- Anis AJ)

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
42. The three photographs depicts a serous injury to the victim and am sure that it was very painful and agonising to the victim especially during eating and consumption of liquid whilst nursing the injury which Dr John Tsiperau told the court that the injury is likely to leave a scar. The scar was visible when victim Edgar Ali pointed out in court where he was kicked by the Police officer.

43. A scar is a disfiguration on a surface of a skin which is usually permanent. Hence qualifying as permanent injury as defined in section 319 of the Criminal Code Act Chapter 262.

44. Therefore, I am satisfied that the evidence adduced by the State thus far establishes all elements of the charge of grievous bodily harm under section 319 of the Criminal Code Act and the assault on the victim by the accused was uncalled for and unjustified in law. Hence the answer to the first principle of no case to answer is in the affirmative.

45. As to the second principle of no case to answer, the accused in the Record of Interview, Question and Answer 12 admits his presence at the scene of crime and assaulting the victim Edgar Ali however his explanation of how it happened does not offer or raise any justification or a legal defence. All I can state at this juncture is that there is sufficient evidence to call upon the accused to answer to his charge.

Order of the Court.

46. The no case to answer application is refused and the accused has a case to answer.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Kopunye Lawyers: Lawyer for the Defendant