State v Kamak [2023] PGNC 239; N10385 (6 June 2023)

N10385

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1164 OF 2020

THE STATE

V

APHILIS KAMAK

Angoram: Thoke, AJ
2023: 21^st& 22^nd February & 6^th June

CRIMINAL LAW – Trial- Grievous Bodily Harm- Not Guilty Plea-– Section 319 of the Criminal Code – relevant matters for consideration

CRIMINAL LAW- assessment of evidence- Self Defence-Alcoholic Influence-Self Defence failed- Accused guilty as Charged.

Facts:

It is alleged that on the 10^th of July 2020, sometime around 2am and 3am, the accused was drunk undertaking homebrew along with a friend, Samuel Kumbia. While intoxicated he went to the complainant’s sister, Morin Kamaso, asking her to repay an amount of money that had been borrowed sometime back. Upon receiving negative response coupled with a recollection of being given continuous negative feedback for numerous times he asked her to repay, he angrily reacted by cutting down banana and betel trees within the home, belonging to the complainant Gabriel Kamaso, and departed. On his way, he met the complainant in which he causally told him what he had just done, whereby the complainant did not take it seriously. Upon confirming that his banana trees and betel nut trees were actually destroyed, he went back armed with spears, to confront the accused, in which a verbal fight ensued followed by a heated physical exchange, resulting in the injury on the complainant’s hand.

HELD:

1. The accused was not unlawfully assaulted.
   
2. There was no provocation by the complainant. The fight was initiated by the accused himself.
   
3. Drinking homebrew is an illegal act, as such, a person cannot be served justice where an offence is committed while conducting an illegal act.
   
4. It is difficult to believe the accused person’s act as one defined to be of self defence under the circumstance that his state of mind was intoxicated with alcohol, or homebrew in this case, as such, Defence of self defence fails.
   
5. Accordingly, the accused is guilty as charged.
   

Cases Cited:

The State v Apa [2020] PGNC 440; N8566

The State v Lenny Banabu (2005) N2871

The State v Kawakpen [19878] PNGLR 316

Legislations Cited:

The Criminal Code Act 1974
The Constitution

Counsel:

Ms. A Kaipu, for the State
Mr. Dan Siki, for the Accused

JUDGEMENT ON VERDICT

6^th June, 2023

1. THOKE AJ: This matter came before me on the 22^nd February 2023. I reserved the decision on verdict for today.
   
2. The Accused has been charged with one count of grievous bodily harm under section 319 of the Criminal Code on the 10^th day of July 2020.
   
3. Section 319 of the Criminal Code states:
   

“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.”

4. The Indictment reads as follow:
   

“APHILIS KAMAK of MASANDANAI VILLLAGE, ANGORAM DISTRICT, EAST SEPIK PROVINCE stands charged that he at Gavien Village, Angoram District, East Sepik Province in Papua New Guinea on 10^th of July 2020 unlawfully did grievous bodily harm to GABRIEL KAMASO contrary to s. 319 of the Criminal Code.”

5. The Indictment and statement of facts were read out to the Accused and he pleaded not guilty and trial commenced.
   
6. In pleading NOT GUILTY, the accused raised his Defence to be of Self Defence.
   
7. Thus, the State and the Defence were called to prove their respective cases.
   

THE DEFENCE’S EVIDENCE

8. Defence opened its case, calling the two witnesses, the accused Aphilis Kamak, and Samuel Kumbia.
   
9. Aphilis Kamak gave sworn evidence that:
   
   1. On the 10^th of July 2020 at 2am and 3am, he was drunk and went to the complainant’s sister, Mori Kamaso’s house, and asked her to repay his money owed by her.
      
   2. He said he was very frustrated that Mori Kamaso did not provide a positive feedback at that time and for the numerous times he had brought up the subject to her and her family, to repay, to which he cut down the banana and betel nut trees.
      
   3. He then left and went down the road with Samuel Kumbia, where they met the complainant and Yuah Philip. He told him of what he had just done to which he responded that it was none of his business, rather him and his sister, Mori Kamaso’s personal matter. However, upon confirming that destruction was truly done, the complainant returned back with six spears following him down to the Factory Junction.
      
   4. He said he then heard the complainant calling out from some distance demanding a response on why his properties were destroyed.
      
   5. The complainant had a confrontation with Samuel Kumbia when they were 5 meters away. He also threw his first spear which landed on Yuah Philip’s leg. He then started to launch the second spear aiming at him, to which he said he quickly grabbed Samuel Kumbia’s bush knife and instinctively blocked away the spear that was launched and directed at his abdomen. He further added that a torch was tied around his head, thus he could clearly see the spear heading towards him at that time, in the night. The complainant then attempted to release the third spear against him, to which he tried to dodge it by severing the complainant’s hand, as to disarm the spear off his hand.
      
   6. He added that he did not go further. He cut it once, only to disarm the spear that was in the complainant hand.
      
   7. Further, he said, Samuel collected all six spears and went home and were handed over to the police next morning and they surrendered themselves to the police.
      
   8. When asked about the purpose of that nature of spear, he responded that it was a traditional spear used in fighting.
      
10. The Second Defence witness Samuel Kumbia gave sworn evidence that:
    
    1. His evidence was analogous to that of the accused, whereby he asserted that he was with him at the time of the incident.
       
    2. He reiterated that he collected six spears at the scene of the accident and handed them to the arresting officer.
       
    3. He added that the accused only disarmed the victim by cutting his hand which was armed with a spear, and did not in any way further attack him or his relative.
       

DEFENCE’S SUBMISSION

11. The defence submitted that the assault by means of launching of spears induced the accused to believe on reasonable ground that it was necessary for him to preserve him from death or grievous bodily harm to use force in self defence.
    
12. The defence submitted that the force was reasonably necessary for the preservation of the accused and Samuel Kumbia’s life from imminent death or grievous bodily harm posed by the threat imposed by the victim.
    
13. The defence again submitted that the exceptions to subsection 2 of Section 270 of Criminal Code do not apply in this case.
    
14. The defence finally submitted that the state has failed to negate all elements of self defence, hence failed to prove its case beyond reasonable doubt.
    

THE PROSECUTION’S EVIDENCE

15. The Prosecution opened its case by calling 3 witnesses to the stand.
    
16. The first State witness Morin Kamaso gave sworn evidence that:
    
    1. The accused came drunk to her house around 2am saying “Kan, I am Aphilis. I will burn you with the house.”
       
    2. The accused then continued cutting down banana trees and betel nut trees with a 1 meter bush knife.
       
    3. She then told the complainant that the accused had cut down the banana trees and the betel nut trees.
       
    4. She saw the complainant took with him three spears before leaving the house.
       
    5. She later saw the complainant coming home with a cut on his hand and lips.
       
    6. They then took the complainant to the nearby health center.
       
    7. At cross examination, she admitted that she owed the accused, some from his betel nut sales.
       
17. The Second State witness Gabriel Kamaso gave sworn evidence that:
    

In Examination in Chief

1. The complainant was with Yuah Philip and Yanu Guan on the roadside when the accused came drunk and told the complainant of what he had just done to his banana trees and betel trees.
   
2. He checked that it was true, upon which he was angry and got four spears, one in his right hand and three in his left hand and followed the accused.
   
3. He approached the accused from a distance of 10 meters and asked him why he had destroyed his properties when the accused swore at him saying “Kan yu”.
   
4. They then argued for 10 minutes when the accused and Samuel Kumbia attacked him despite his two friends trying to stop.
   
5. The accused charged at him with a bush knife so he threw a spear with his right hand from a distance of 5 meters which landed at the thigh of his own friend, Yuah Philip.
   
6. The accused then cut him on his hand and he ran home.
   

In Cross Examination:

1. He reaffirmed what he said during examination in chief.
   
2. He only acted upon the accused charging at him with a bush knife.
   
3. In doing so, he only threw a single spear purposely to stop the accused from attacking him further, and denied throwing more than one spear.
   
4. Upon request by this Court whether accused was drunk, he agreed that the accused was drunk.
   

18. The Third State witness Yuah Philip gave sworn evidence in pidgin analogous to the complainant, which essentially corroborated the evidence of the complainant.
    
19. During the Record of Interview, the accused said that he was firstly attacked by the complainant with a spear thrown at him, and another at Samuel Kumbia, to which in defence, he grabbed a bush knife from Samuel Kumbia and cut the complainant.
    
20. The medical evidence was not tendered but only marked as MfI 1 for identification.
    

PROSECUTION’S SUBMISSION

21. The state submitted that it has negated all the elements of self defence rejecting the accused’s evidence of not assaulting the complainant first or not provoking the complainant to assault him.
    
22. The state then submitted that the evidences of the three state witnesses are trustworthy and credible with the assertion that its evidences are corroborative towards each other, not faltering in cross examination, but reaffirming what has been said in the examination in chief.
    
23. The state further submitted that the accused’s demeanor and appearance during examination in chief was unwavering, but faltered during cross examination.
    
24. The state finally submitted that the accused’s evidence in chief that he was able to cut the second spear that was thrown at him was not credible, as he was drunk and it was at 2am in the morning.
    

ISSUES FOR THIS COURT’S DETERMINATION

25. Both counsels for the state and defence analyzed in their respective submissions the following issues:
    
    1. The state analyzed issues:
       
       1. Whether the accused acted in self defence?
          
       2. Whose story should the Court believe?
          

2. The defence analyzed issues:
   
   1. Whether the Court should believe the Defence’s story or state’s story?
      
   2. Whether the action of the accused in cutting the victim is justified by law?
      
   3. Whether the accused caused grievous bodily harm?
      

26. I find many of these issues as subsidiary and similar in context. The third issue as posed by defence is irrelevant in this case and the first and second issues of both state and defence are similar in context but are subsidiary. I find that the significant issue behind this case is to determine whether the Accused’s act is of self defence. Answering the following questions or tests for determining self defence, will establish whether the accused act is defined as an act of self- defence or otherwise.
    
    1. Was the accused unlawfully assaulted?
       
    2. Whether the accused provoked the assault?
       
    3. Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?
       
    4. Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffer grievous bodily harm?
       
    5. Did the accused use such force as means necessary for his defence?
       
27. In line with these standard tests, I find the following undisputed and disputed facts as provided by the state’s submission as helpful to evaluate and declutter the proper issues in this case. I extract the following undisputed and disputed as submitted by the state.
    

“Undisputed Facts:

• The accused and Samuel Sumbia were drunk
• The complainant was not drunk
• The accused destroyed the properties including banana and betel nut trees using a bush knife
• The complainant had brought some spears with him after he confirmed the cutting of his banana and betel nut trees
• There was a heated exchange of words before the accused cut the complainant
  

Disputed Facts:

• The accused did not act in self defence
• The accused attacked first
• The complainant had three more than 1 spear
• The first spear was thrown at Samuel Sumbia
• The second spear was thrown at the accused, but the accused cut the spear while it flew towards him. “
  

28. I therefore find the following as relevant issues:
    
    1. Whether the victim was the first person to instigate the fight?
       
    2. If so, whether the accused was assaulted to the point where he was of reasonable apprehension that he used force that is necessary to defend himself from possible death.
       
    100. Whether the injuries inflicted on victim was justified within the ambit of Self Defence?
         
29. While taking into consideration the disputed and undisputed facts above, the Defence submission of self defence against unprovoked assaulted under Section 269 of the Criminal Code renders the prosecution an onus to disprove the following elements as His Honour Justice Cannings enunciated in the case of the State v Lenny Banabu (supra).
    
    • the accused was unlawfully assaulted; and
    • the accused did not provoke the assault; and
    • the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and
    • the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and
    • the accused used such force as was necessary for his defence.”
      
30. His Honour Justice Cannings then simplified it in question form for the prosecution to address each carefully, before the purported act of an accused is deemed either an act of self defence or otherwise.
    
    1. Was the accused unlawfully assaulted?
       
       2. Did the accused not provoke the assault?
          
    3. Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?
       
    4. Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?
       
    5. Did the accused use only such force as was necessary for his defence?
       
31. I am content that it was a confrontation between individuals and parties who were drunk against the individuals and parties who were of sober mind.
    
32. I also find that the time of incident was at an unusual time. 2am – 3am in the night is generally a time when everyone is asleep, as opposed to person (s) intoxicated with alcohol or for specific occasions to be staying up or roaming the streets in the night.
    
33. The accused and his friend Samuel Kumbia were intoxicated with homebrew at the time of the night, that occasioned the victim’s hand being severed. Samuel Kumbia admitted that they were drunk and not of sober mind.
    
34. The Second State witness Mori Kamaso said that the accused came drunk and swore at her and said “Kan you, I will burn you with the house” [ translation all mine] and then went onto asking her to repay his money and destroyed the banana and betel nut trees. Although the complainant’s sister, Morin Kamaso agreed that she owed him money, going into her house at such a time in the night was not exceptional and unusual, whereby it is evident that the accused and his drinking mate, Samuel Kumbia were not in a sober state to act rationally to avoid engaging in such a conduct, at such a time.
    
35. There is no dispute on the subject of borrowed money by the complainant or defence, rather the conduct executed as means to recoup the money. The accused approached the complainant’s sister while under the influence of an illegal substance, at the wrong time. He should have approached her at the right time and place, or brought his matter to the village or district court, following the right processes to have his money refunded. In this case, the Accused is subject to criminal culpability, for not taking the appropriate steps.
    
36. There is no clear evidence on the part of accused being injured severely to react in the way he did. While I agree that the Complainant was armed with spears, triggering fear, I am of the opinion that the accused and his friend’s state of intoxication caused him to react abruptly, without proper reasoning.
    
37. I agree with the state’s submission that the accused’s evidence in chief, stating that his act was purposely to disarm the second spear that was thrown at him was not credible. His insinuation that he was able to see clearly the spear advancing towards him does not sit well with me, factoring that it was 2am in the night, and he was essentially drunk with possible deficient vision.
    
38. As submitted by the Defence counsel under paragraph 23, the combined act of the accused and his friend Samuel Kumbia, cannot be justified on the basis of intoxication of alcohol, and being easily triggered to react as they did. More, drinking homebrew is an illegal act and a person takin in such illegal drug, cannot not be easily exonerated from criminal culpability.
    
39. Further, the accused’s own oral evidence is dismissing the element of self defence. He stated that he heard from a distance of 5-10 meters that the victim was asking and demanding an answer for the destruction done to property before approaching his friend Samuel, where a verbal altercation ensued with him. It is evident that the victim did not maneuver or sneak his way onto him or his friend to take revenge over the destruction of his property. He noticeably returned to confront the accused armed with spears while making known to the accused that he was curious as to why his property was destroyed without his knowledge or understanding. I am of the view that accused reacted quickly upon seeing his rage, as opposed to being in a critical or endangering position to preserve his life by reacting in the way he did, even more, initially provoking the victim by the destruction of his property.
    
40. The accused then causally told the complainant, the owner of the properties, without being mindful of the potential reaction or consequence that could be triggered by such statements. I am satisfied that the accused was intoxicated to the extent where he could not rationally conduct himself at that relevant time. Hence, I am not buying the version of self-defense, as the accused and his friend were both not sober enough to make reasonable decisions, such as to protect and preserve themselves from possible death or take into consideration the possible damage that can be done on the contending victim.
    

DECISION SUMMARY

41. Having considered the above, I will now apply the standard test questions applied in the State v Lenny Banabu (supra):
    
    1. Was the accused unlawfully assaulted?

Answer: NO

2. Did the accused not provoke the assault?

Answer: NO

3. Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

Answer: NO

4. Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

Answer: NO

5. Did the accused use only such force as was necessary for his defence?

Answer: NO

42. Since section 319 has only two elements which include (1) doing grievous bodily harm and (2) doing it unlawfully, I find that both elements of the offence prove beyond reasonable doubt that the accused did cause Grievous bodily harm on Gabriel Kamaso, the victim.
    
43. Accordingly, the verdict is returned as guilty and the accused is convicted as charged.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused