State v Simon (No 1) [2022] PGNC 365; N9765 (21 July 2022)

N9765

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1411 OF 2021

STATE

V

GERRISON SIMON
(No 1)

Waigani: Wawun-Kuvi, AJ
2022: 7^th & 8^th June and 21^st July

CRIMINAL LAW-TRIAL-Intention to Cause Grievous Bodily Harm, section 319 Criminal Code-Disputed Facts-Whether accused struck the complainant in the manner alleged? Whether accused caused grievous bodily harm? Whether accused caused bodily harm?

The accused was charged with causing grievous bodily under section 319 of the Criminal Code. The State’s case is that the complainant suffered grievous bodily harm by reason of a wound to the forehead and the loss of two teeth. Her teeth were knocked out when the accused head-butted her in the mouth and nose. The wound to her forehead was sustained when the accused struck her with a table leg.

The accused admits head-butting the complainant. He says that her teeth were already missing. He admits that the complainant received an injury to her forehead. His version is that she fell and hit her head against the table.

Held:

1. I accept the evidence of the complainant and find that her tooth and an implant were knocked out when the accused head-butted her. She explained that she had an implant inserted to replace the missing tooth. The photographs exhibited as “S2” and “S3” and the medical report exhibited as “S6” confirm a missing tooth and implant. The report and the photographs also indicate and confirm recent or fresh injuries.
2. The medical report indicates a wound measuring 8 cm in length, 1-2 cm in width and a depth of 1 cm. The length of the wound and its angle is far more consistent with being struck on the forehead as opposed to falling and hitting the forehead. However, the length and angle of the wound itself may not be definitive. It is taken with the complainant’s description of being on the floor and looking up at the accused who was standing over her, when he struck her across the face. The photographs exhibited as “S2” and “S3” indicate a wound far more consistent with the complainant’s version. The combination of all these factors, leads me to conclude and accept that the accused struck the complainant across the face with a table leg.
3. The State must prove that the accused caused grievous bodily harm to the complainant.
4. Section 1(1) of the Criminal Code defines Grievous Bodily Harm to “mean any bodily injury of such a nature as to endanger or to be likely to endanger life, or to cause or to be likely to cause permanent injury to health.”
5. In determining whether the injuries fall within the definition of grievous bodily harm, I adopt the principles in the case of Swan v R [2016] NSWCCA 79. They are:

“(a) It is to be interpreted according to its natural and ordinary meaning;

(b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;

(c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;

(d) not every injury is capable of amounting to grievous bodily harm;

(e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.”

6. The evidence does not disclose that the injury was life threatening or that it was likely or caused any permanent injury to the complainant’s health.
7. I cannot be satisfied that on the evidence that the accused caused the complainant grievous bodily harm.
8. Having already accepted that the accused head-butted the complainant and struck her across the forehead with a table leg, I am satisfied on the required standard that he assaulted her within the definition of section 242(1) of the Criminal Code.
9. I am also satisfied that the assault was unlawful. The defence of provocation was not sufficiently raised on the evidence.
10. Section 1(1) of the Criminal Code defines “bodily harm as any bodily injury that interferes with health or comfort”.
11. On the evidence of the complainant, supported by the medical report and the photographs, I am satisfied that bodily harm was caused.
12. Verdict of not guilty is returned for the charge of causing grievous bodily harm under section 319 of the Criminal Code and a guilty verdict is returned on the alternative count of assault occasioning bodily harm under section 340 of the Criminal Code.

Cases Cited:

Papua New Guinean Cases
Nil

Overseas Cases

Swan v R [2016] NSWCCA 79

Reference

Criminal Code (Ch 262)

Counsel
Ms Violet Ningakun, for the State
Mr Luke Siminji, for the Defence

VERDICT

21^st July, 2022

1. WAWUN-KUVI, AJ: Gerrison Simon (accused) and Sandy Amaiu Ipatas (complainant) were once in a loving relationship. They lived together at Red Sea Police Barracks at Bomana here in the National Capital District. Gerrison Simon is a police officer attached with the Air Transport Service with the Royal Papua New Guinea Constabulary. Sandy Amaiu Ipatas is now a finance manager with an investment firm in Sydney, Australia. During the relevant period she was unemployed.
   
2. The reasons for their relationship breakdown are only known to them and not relevant. What is relevant is that on 21 December 2018, Gerrison Simon and Sandy Amaiu Ipatas had an altercation. An altercation that resulted in police charges.
   
3. An otherwise uneventful morning, four days shy of Christmas, turned into a domestic disturbance.
   
4. Ms. Ipatas says that while Mr. Simon was having a shower, she opened his vehicle and took a packet of cigarettes, betelnuts and K12.00 cash monies. Mr. Simon noticed that the items were missing, and he questioned her. He became agitated and headbutted her on the nose and mouth. As a result, she lost a tooth and an implant. He then threw her across the room. He pulled out the leg of a table which was wobbly. He struck her across the forehead. She sustained a wound to her forehead.
   
5. Mr. Simon says that he was the close protection officer to the CEO of the APEC meeting. He was frustrated because he could not locate his vehicle keys. He became more agitated as time passed. He admits head-butting the complainant. He says he did it out of frustration. He pushed her out of his way, and she fell and hit her head against the table. Her teeth were knocked out some weeks prior when she had a fight with her relatives.
   
6. I must now decide whose version to accept.

Burden of Proof

7. The onus is on the prosecution to prove its case beyond reasonable doubt and to negate any defences properly raised also beyond reasonable doubt.

Issues

8. The issues are:
   1. Did the accused cause the complainant to lose two of her teeth?
   2. Did the accused strike the complainant on the forehead with a table leg?
   3. Did he cause her grievous bodily harm?

Findings of Fact

9. In the assessment of the witnesses’ evidence, I am reminded that there is no principle in law that requires me to reject or accept all of a witness’s evidence. I may accept some part and reject others and may attach different weight to the evidence.
   
10. On 21 December 2018, Mr. Simon went to have his shower. Ms. Ipatas seizing the opportunity, took his vehicle keys and rummaged around the vehicle. She removed K12.00 cash monies from his wallet, a packet of cigarette and some betelnuts.
    
11. Mr. Simon after getting dressed in his uniform proceeded to depart for his close protection duties. This is where the dispute arises.
    
12. Mr. Simon says that he could not locate his keys and as time was passing, he became frustrated. Ms. Ipatas says he was looking for his wallet.
    
13. Simon Opo, Mr Simon’s father, stated that Mr. Simon was searching for his vehicle keys. The State did not cross examine this witness. His evidence is left unchallenged.
    
14. I accept that Mr. Simon was providing close protection to the APEC CEO and that he was running late. These matters were not challenged. It is more logical that he could not leave because of missing vehicle keys as opposed to a missing wallet. I accept that the accused was searching for his vehicle keys that morning.
    
15. That does not mean that, I do not accept the evidence of Ms. Ipatas that the accused was angry over his wallet. That morning must be assessed in all its context. He could not locate his keys which made him late. She went through his wallet and removed money. By her own account, she was the last person to have access to the vehicle. She did not get his permission and without his knowledge gained access to the vehicle.
    
16. She says she was owed money. She saw the two packets of cigarette and plastic of betelnut and arrived at the conclusion that Mr. Simon had money and was concealing it from her. She says she raised this with him when he was searching around the house. He was obviously not in a state of mind to talk about finances as he had to go to work. Her statements about the items from the vehicle would have confirmed to him that she had access to his vehicle.
    
17. Each of them had their own version of the cause of the fight that day. But that does not necessarily mean one is lying. The nature of domestic disputes is often the breakdown of communication. In her own mind, the argument was about a missing wallet because her mind was centered on monies owed to her. He was trying to go to work and could not because, he could not locate his keys.
    
18. There matters may appear insignificant, but it is crucial to appreciate the tension that was within their household.
    
19. I find that there was an initial argument between Mr. Simon and Ms. Ipatas over these issues. And when Ms. Ipatas realized that Mr. Simon had lost his temper, she attempted to calm him. He agrees that she attempted to calm him down and had moved towards him. When she moved towards him, he head-butted her. Much of this part of the evidence is not in dispute.
    
20. I accept the evidence of the complainant and find that her tooth and an implant were knocked out when the accused head-butted her. She explained that she had an implant inserted to replace the missing tooth. The photographs exhibited as “S2” and “S3” and the medical report exhibited as “S6” confirm a missing tooth and implant. The report and the photographs also indicate and confirm recent or fresh injuries.
    
21. She says that he then threw her across the room. She landed on a table. He removed the table leg and struck her across the face. He says, he pushed her out of his way, and she fell and hit her head against the table.
    
22. The medical report indicates a wound measuring 8 cm in length, 1-2 cm in width and a depth of 1 cm. The length of the wound and its angle is far more consistent with being struck on the forehead as opposed to falling and hitting the forehead. However, the length and angle of the wound itself may not be definitive. It is taken with the complainant’s description of being on the floor and looking up at the accused who was standing over her, when he struck her across the face. The photographs exhibited as “S2” and “S3” indicate a wound far more consistent with the complainant’s version. The combination of all these factors, leads me to conclude and accept that the accused struck the complainant across the face with a table leg.
    
23. The complainant’s evidence was straight forward. She gave her evidence confidently and was visibly upset when recalling the events of that day. Her evidence was not shaken during cross examination.
    
24. The accused whilst acknowledging the complainant’s injuries, attempted to remove himself as the cause of those injuries during his evidence in Court. However, in his police interview, he acknowledged that there was a mediation and he had made some effort to compensate the complainant. It can be reasonably concluded that his motive for not acknowledging responsibility in Court is that he is a police officer and any conviction against him is likely to result in a discharge from the police force.
25. Having accepted that the complainant sustained injuries because of the accused, I must now decide whether the elements of the offence have been proven.

Elements of the Offence

26. The accused was charged with causing grievous bodily harm under section 319 of the Criminal Code.
    
27. The State is required to prove the accused:
    1. Unlawfully
    2. Caused grievous bodily harm
    3. To the Complainant

The Evidence

28. The State’s case is that Ms. Ipatas sustained grievously bodily harm by reason of a deep open wound to the forehead and the loss of two of her front teeth.
    
29. She had also suffered a bruised left eye, a laceration to her lip and bruises to her chest. She was also in a state of shock. The State did not rely upon these injuries as amounting to grievous bodily harm.
    
30. The evidence of the injuries and the consequences of them were given only by the complainant.
    
31. She said that after the accused hit her, she had passed out. When she regained her consciousness, she took photographs of her injuries and then went to Port Moresby General Hospital Accident and Emergency. She waited for a while and was not attended to. She then made phone calls and a doctor that was a family friend attended to her. She was treated and left the hospital. She was provided a medical report.
    
32. The report exhibited as “S6” concluded as follows:
    

“Sandy had the wound on her forehead sutured under local anesthesia under sterile preparation. She was discharged on antibiotics and analgesics. She was also advised to rest and do wound cleaning and dry dressing. Sandy was directed to make an appointment and have a review with the dental team for fractured incisors. The wound on her forehead will heal but leave a scar across her left forehead.”

33. There was no evidence of any further reviews or consultations. There was no dental report.
    
34. In addition to the medical report, the photographs taken by the complainant show the wound and the missing tooth and implant.

Grievous Bodily Harm

35. Section 1(1) of the Criminal Code defines Grievous Bodily Harm to “mean any bodily injury of such a nature as to endanger or to be likely to endanger life, or to cause or to be likely to cause permanent injury to health.”
    
36. In determining whether the injuries fall within the definition, I adopt the principles in Swan v R [2016] NSWCCA 79^[1]. They are:
    

“(a)It is to be interpreted according to its natural and ordinary meaning;

(b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;

(c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;

(d) not every injury is capable of amounting to grievous bodily harm;

(e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.”

Were the injuries grievous?

37. The complainant was waiting for some time before she was treated by a doctor. This indicates that this was not an emergency case. That she was not in a level of discomfort that required urgent medical assistance.
    
38. When the doctor arrived, he stitched her forehead and sent her home with antibiotics and painkillers. She did not require any further medical intervention or ongoing consultation.
    
39. There was no evidence as to any discomfort or disabilities following her visit to the hospital. There was no evidence as to any effects on her health or standard of living since the injuries. The only evidence is that she has had her teeth reconstructed by implants and she has a scar on her forehead. A scar in which, I have observed to be barely visible at a distance.
    
40. The evidence does not disclose that the injury was life threatening or that it was likely or caused any permanent injury to the complainant’s health.
    
41. I cannot be satisfied that on the evidence that the accused caused the complainant grievous bodily harm.
    
42. The State has charged the accused on the alternative count of assault causing bodily harm under section 340 of the Criminal Code.

Assault causing bodily harm

43. The evidence must prove that the accused unlawfully assaulted the complainant and that when he assaulted her, he caused her bodily harm.
    
44. Assault is defined as the direct or indirect striking, touching or movement or otherwise the application of force to the body of another, without consent or with consent if the consent was obtained by fraud: see section 242(1) of the Criminal Code.
    
45. Having already accepted that the accused head-butted the complainant and struck her across the forehead with a table leg, I am satisfied on the required standard that he assaulted her within the definition of section 242(1) of the Criminal Code.
    
46. I am also satisfied that the assault was unlawful. The defence of provocation was not sufficiently raised on the evidence. It was not specifically put to the complainant in cross-examination and was not available in the Record of Interview.
    
47. However, even if it was raised, the accused is not an ordinary person. He is a member of the police force and attached to a specialized unit. He is expected to have a certain level of tolerance.
    
48. It is also disproportionate to head-butt a female who is much smaller in stature and then strike her across the forehead with a table leg over a missing key.
    
49. Additionally, the act of head butting or striking a person across the face with a weapon in this case a table leg is likely to cause death or grievous bodily harm. It was fortunate for the complainant that it did neither.
50. The defence is not made out.

Was bodily harm caused?

51. Section 1(1) defines “bodily harm as any bodily injury that interferes with health or comfort”.
    
52. On the evidence of the complainant, supported by the medical report and the photographs, I am satisfied that bodily harm was caused.

Conclusion

53. Verdict of not guilty is returned for the charge of causing grievous bodily harm under section 319 of the Criminal Code and a guilty verdict is returned on the alternative count of assault occasioning bodily harm under section 340 of the Criminal Code.

Orders

54. The Orders of the Court are as follows:
1. The accused is found not guilty and discharged of the charge of causing grievous bodily harm under section 319 of the Criminal Code.
2. The accused is found guilty and convicted of the charge of Assault occasioning bodily harm under section 340 of the Criminal Code.
3. A Pre-Sentence Report is ordered and shall be made returnable on 4 August 2022 at 9.30 am.
4. Bail is granted under section 10 of the Bail Act on the same conditions on which bail was previously granted.
   

_____________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

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^[1] At paragraph 71