State v Oa [2021] PGNC 515; N9379 (29 November 2021)

N9379

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 82 OF 2021

THE STATE

v

MURRAY OA

Waigani: Salika CJ
2021: 9^th, 10^th, 11^th & 29^th November

PRACTICE AND PROCEDURE – Criminal Law – Charge of grievous bodily harm – s. 319 of the Criminal Code Act – State failed to charge alternative charge in the indictment – Accused not guilty under s. 319 – Injury sustained did not amount to grievous bodily harm – Whether assaults were lawful – defence of provocation not made out.

PRACTICE AND PROCEDURE – Criminal Law – Whether alternative charges and verdicts are available for a charge under s. 319 of the Criminal Code Act – Discussion on effect of s. 542 (1) of the Criminal Code Act.

Cases Cited:

R v Bawai Pesoi (1965 – 66) PNGLR 210
R v Meauri (1969-70) PNGLR 259
R v Polhill (1973) N734
State v John Liu (2021) 15 November, CR 796 of 2020
State v Nick Pinga (2010) N3852
The State v Carol Peter (2011) N4299
The State v Mark Mondo Bossop (2010) N3921

Counsel:

Ms M Tamate, for the State
Mr L Siminji, for the Accused

29^th November, 2021

1. SALIKA CJ: INTRODUCTION: The accused in this matter is charged with one count of unlawfully causing grievous bodily harm to one Debbie Kaore pursuant to s. 319 of the Criminal Code Act.
   
2. On arraignment, the accused denied the charge and a trial ensued.
   

Facts

3. The following facts were put to the accused on arraignment in support of the charge:
   

On 4^th June 2020, the accused, a Lieutenant with the PNG Defence Force attached to Murray Barracks, but resident at Goldie Barracks arrived home intoxicated with alcohol and began questioning the victim over a duet video she had made on social media platform Tiktok. Before the victim could explain, the accused punched her on her face with folded fists. The victim, while blocking more punches, lost her balance and fell onto the floor, at which point the accused held out a heated clothing iron and placed it face down on her left thigh and burnt her. He then placed the hot iron on the victim’s left side cheek and pulled it downwards thereby burning her left cheek and chest area. Whilst she lay crying in pain on the floor, the accused further placed the hot iron on the victim’s abdomen and burnt her once again. The accused attempted to prevent the victim from running away from him, head-butted her and hit her twice on her left side forehead with the iron, as she struggled to get back on her feet. The victim managed to get back up and escape, seeking help from the military police office located at the barracks.

The victim was treated at the barrack’s military aid post before being referred to Port Moresby General Hospital for medical examination and further treatment. As per the medical report, the victim sustained multiple second degree and superficial burn wounds to her left thigh, left chin, anterior chest and abdomen, as well as laceration of her left side forehead measuring 6 cm in length and 1 cm deep exposing her skull.

Evidence

4. Sworn oral evidence together with documentary evidence was adduced by the State. The victim, Debbie Kaore, gave sworn oral evidence of assaults inflicted on her by the accused. She said she and the accused had a de facto relation in that she was living with the accused at Goldie Barracks and from that relationship, had a child.
   
5. She told the Court of the events of 4 June 2020 when the accused questioned her about a duet video clip she had recorded on social media platform Tiktok. She said before she could explain the accused punched her on her face and burnt parts of her body with a hot iron.
   
6. The victim suffered burns to parts of her body where the hot iron was placed and suffered some cuts on her body and forehead inflicted by the accused. She was able to escape the assaults and get some treatment first at the Goldie Barracks Military Aid Post and later referred to the Port Moresby General Hospital. Dr Frank Lakari attended to her and later prepared a medical report on the injuries she sustained and the medical care given at the hospital. The injuries she sustained were superficial wounds and bruises, as found by the Doctor.
   
7. The victim’s cousin Marie Therese Okuau gave evidence in support of her; corroborating her story. She also took photographs using her mobile phone, of the injuries the victim sustained at the time of the assaults which were tendered into evidence and are marked exhibits in this case. The photographs show graphic images of the assaults inflicted on Debbie Kaore by Murray Oa. The photographs indeed corroborate the evidence of both Debbie Kaore and Marie Therese Okuau. Her evidence was not challenged.
   
8. The accused gave unsworn evidence from the accused dock. He gave his side of the story saying he was ironing his clothes when Debbie arrived and he said he asked to use Debbie’s mobile phone. At this point he saw a duet video clip recording on Debbie’s mobile phone Tik Tok platform. He said he was provoked and assaulted the victim.
   
9. The accused’s trial was never run on a defence of provocation. The Defence counsel never raised provocation as a defence to the victim in cross-examination. Provocation was only mentioned by the accused himself from the dock when he gave his evidence.
   

The Law

10. The elements of the offence of unlawfully doing grievous body harm are:
    
    1. A person,
    2. On a date and place;
    100. Unlawfully;
    4. Did grievous body harm;
    5. To another person.
       
11. In order to secure a conviction under s. 319 of the Criminal Code Act, the State must in the preparation of its case ensure with much certainty that the victim suffered bodily injury of such a nature that:
    
    • As a result of the injury, the victim’s life was endangered;
    • As a result of the injury, the victim’s life was likely to be endangered;
    • Victim suffered permanent injury to her body;
    • The permanent injury would affect or was likely to affect her health and comfort.
      
12. In this case, the State failed to consider those very factors before laying the charge. The medical report by the doctor was clear. The wounds and cuts were superficial and had healed well. Yet the State charged the accused under s. 319 of the Code. Section 1 of the Criminal Code defines “grievous bodily harm” as any bodily injury that interferes with health or comfort. Moreover, the State did not consider it appropriate to have an alternative charge preferred on the same indictment. It became obvious that the State could not sustain a conviction on a charge under s. 319 of the Code. The State later in submission on verdict conceded that the charge under s. 319 could not be sustained. The State then turned to S542(1) to help it out of the mess it created for itself. The State argued S542(1) provided an alternative verdict.
    
13. The Defence submitted that there was no alternative verdict available under s. 319 of the Code and that the accused should be acquitted of the charge under s. 319 because the State did not prefer any specific alternative count for any of the lesser offences. In my view, the defence submission has some merit. The State should study all the evidence and know the law and choose carefully what charge or charges to lay. The Defence relied on the old case of R v Polhill (1973) N734 which held that on a charge of doing grievous bodily harm, without alternative counts, no lesser offence could be found against an accused. This was the old common law position.
    
14. The Defence further argued that s. 542(1) of the Criminal Code was not applicable on a charge under s. 319 of the Code as the offence under s. 542 (1) requires a specific result to be an element of that charge and that in this case the charge under s. 319 is not a charge and that comes under s. 542 (1) because s. 319 is not a charge that requires causing of a specific result.
    
15. There is no doubt in my mind, based on the evidence placed before me, that the accused did inflict the assaults on the victim. The Defence counsel made a no case submission at the close of the case for the prosecution. I ruled there was evidence of assault per se and allowed the case to proceed for the defence to call its evidence and when all the evidence was before the Court, a finding would be reached as to whether the assaults inflicted on the victim by the accused amounted to grievous bodily harm.
    

Did the injuries sustained by the victim amount to Grievous Bodily Harm?

16. Grievous bodily harm as defined in Section 1 of the Criminal Code means:
    

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

17. In final submission on verdict, the State counsel conceded that the injuries sustained by the victim did not amount to grievous bodily harm. In conceding that fact, counsel for the State submitted that the Court should find the accused guilty of an alternative count of unlawful wounding under s. 320 of the Criminal Code using s. 542 (1) of the Criminal Code.
    
18. As alluded to earlier in this decision, the assaults inflicted on the victim fall short of the assaults amounting to causing grievous harm. I take into account the concession made by the State counsel which in my respectful opinion is the correct one, but should have been made earlier in the preparation stage of the trial. This is because the medical evidence was clear that the wounds inflicted on the victim were superficial and the injuries she sustained were not of such nature as to endanger her life and that there was no permanent injury caused to her health.
    

Were assaults lawful?

19. In the end result, I find the accused did assault the victim inflicting some wounds and other injuries to the victim. Were the assaults lawful? The accused in his unsworn evidence said he “was provoked” by seeing the duet video clip on the victim’s mobile phone application on Tiktok platform and that is what provoked him to do what he did to Debbie Kaore. He argues that because he was provoked, he should be acquitted of the charge because the provocation made the assaults lawful on the victim. Debbie’s evidence was that, the accused asked her about the video clip and that before she could explain, the accused punched her and assaulted her with the heated iron.
    
20. A defence of provocation is available on a charge under s. 319 of the Criminal Code but it must be pleaded as a defence. I note from the Pre Trial Statement of the Defence that pleaded two defences namely:
    
    1. General denial; and
    2. Provocation.
       

At the trial proper, the defence of provocation did not feature at all in the cross-examination of the State witnesses until the accused himself gave his unsworn evidence.

21. The accused raised the defence of provocation in his unsworn evidence. I must address it now. The accused said he saw a video clip of a duet performed by Debbie Kaore with another male person and this provoked him and led him to do what he did. Debbie was going to explain the creation of the duet video clip but the accused punched her depriving Debbie of any opportunity for explanation of her side of the story.
    
22. The accused did touch a bit on why he felt that way and that is because they both had previous relationships implying he did not trust her. Debbie also gave evidence of that. Debbie said before she could explain and give her side of the story, the accused punched her.
    
23. I cannot work out how easily the accused was provoked into doing what he did. He did not wait for any explanation from Debbie. Wikipedia says, “In law, provocation is when a person is considered to have committed a criminal act partly because of preceding set of events that might cause a reasonable person to lose self control. If a crime is caused by provocation, it must be committed in the heat of passion, and under an irresistible urge incited by the provoking events.” The accused in his evidence did not say his actions were done in the heat of passion and that he was under an irresistible urge to do what he did. He simply said he was provoked. How was he provoked? Why and what provoked him? The Court was not told what the duet video clip showed the victim and the other make? Were they kissing or in bed together such that he would loose his cool; thus establishing a defence of provocation. An explanation of the video clip was forthcoming as offered by Debbie, but she was not given the opportunity to explain. He had no right to assault her and abuse her. She is not his toy to be played around with. The fact that he has a child from her and they are living under his roof does not give him any right or licence to assault the victim. The victim is a woman being capable of feeling pain from the assaults.
    
24. To me, with respect this case is more a case of a jealous partner. I find the accused was jealous when he saw his partner on the Tik Tok application on his partner’s mobile phone. Accordingly, I dismiss the unsubstantiated defence of provocation as it was not supported by proper evidence and find beyond reasonable doubt that the assaults occasioned on the victim by the accused were unlawful.
    
25. The State failed to charge an alternative charge in the same indictment. With respect, laying of an alternative charge would in my respective opinion be the most appropriate thing to do if in doubt of the charge under s. 319 or had the evidence been carefully studied.
    

Is an alternative verdict available?

26. Majority of case precedents on the issue of whether an alternative verdict is available on a charge under s. 319 of the Criminal Code have said that alternative counts of:
    
    1. Unlawful wounding – s. 322 of the Criminal Code;
    2. Common assault – s. 335 of the Criminal Code;
    100. Assault occasioning bodily harm – s. 340 (a) of the Criminal Code; and
    4. Serious assault – s. 341 of the Criminal Code;
       

are available.

27. Case precedents on point starting from R v Bawai Pesoi (1965 – 66) PNGLR 210, State v Nick Pinga (2010) N3852; The State v Carol Peter (2011) N4299, and more recently on 15 November 2021, in the matter of the State v John Liu CR 796 of 2020 all say alternative verdicts for lesser offences under s. 319 of the Code are available where the evidence establish beyond reasonable doubt those lesser offences were committed.
    
28. I come to the same conclusion with Cannings J that the effect of s. 542 (1) of the Criminal Code is that if an accused is charged with an offence under one of the provisions of Division V.4 and the State cannot prove all of the elements of the charge, he can be convicted of an alternative charge or offence of a similar, but less serious nature; provided that all the elements of the lesser offence are proven. See R v Meauri (1969-70) PNGLR 259; The State v Mark Mondo Bossop (2010) N3921, The State v Carol Peter (2011) N4299 and State v John Liu (2021) 15 November, CR 796 of 2020.
    
29. I am of the view that the question of whether an alternative verdict is available on a charge under s. 319 of the Criminal Code on the indictment is dependent on the correct interpretation of s. 542(1) of the Criminal Code. My preference would be for the State to lay an alternative charge depending on the evidence available. I note the prevalence of such failures in recent times where the State has not charged an alternative count under s. 319 of the Code, thus the increase in more cases by the State dealt with in this way.
    
30. Section 542 (1) relevantly says:
    

“(1) On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.”

We need to dissect the provision to get to its meaning. I start with Murray Oa being charged:

(i) For an offence of which the causing of some specific result is an element – in this case unlawfully doing grievous bodily harm.

(ii) He may be convicted for any offence of which an intent to cause that result in this case “intent to cause that result” is an element; intent to cause that result is not an element of the offence under s. 319 but intent to cause injury to a person under s. 322 (1) (b) would with the right evidence; s. 322 (1) (b) is not applicable in this case.

(iii) He may be convicted of an offence of which a result of similar, but less injurious nature is an element; s. 322 (1) (a) could fit and he could be convicted under s. 322 (1) (a), however, unlawful wounding would need to be properly established.

(iv) s. 340 is another offence that s. 542 (1) could fit the offence created under s. 340 is an offence where the result of a similar but less injurious harm is similar to unlawful assault causing grievous bodily harm, but less injurious.

31. With respect, the charge under s. 340 is a charge this Court can find under s. 542 (1) of the Criminal Code Act as an alternative verdict. In that regard, I conclude that the most appropriate alternative verdict available in this case on a charge under s. 319 of the Criminal Code Act would be assault occasionally bodily harm under s 340 of the Criminal Code, provided that all elements of the lesser offence are proved beyond reasonable doubt.
    
32. The elements of the charge under s. 340 (1) are:
    
    1. A person;
    2. On a date and place;
    100. Unlawfully assaults another;
    4. Does bodily harm.
       
33. I have read the decision of Cannings J in The State v Carol Peter (2011) N4299 and other cases cited above. I have decided to take the same approach as the learned trial Judge in that case.
    
34. I find the accused not guilty of unlawfully doing or causing grievous bodily harm to Debbie Kaore contrary to s. 319 of the Criminal Code, but I find him guilty of assault occasioning bodily harm contrary to s. 340 (1) of the Criminal Code. I come to the conclusion that the question of whether or not an alternative verdict is available for a charge under s. 319 of the Code is dependent on the correct interpretation of s. 542 (1) of the Code.
    
35. The orders of the Court are:
    
    1. I find the accused not guilty of the charge of doing grievous bodily harm to Debbie Kaore – a charge under s. 319 of the Criminal Code;
       
    2. The accused is instead found guilty beyond reasonable doubt of assault occasioning bodily harm under s. 340 (1) of the Criminal Code Act after invoking s. 542 (1) of the Criminal Code Act. All the elements of the charge under s. 340(1) of the Criminal Code Act are proved beyond reasonable doubt.
       

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused