Bawai, Regina v [1965] PGSC 5; [1965-66] PNGLR 210 (4 April 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 210 - Regina v Bawai-Pesoi

[1965-66] PNGLR 210

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

BAWAI-PESOI

Port Moresby

Frost J

1 April 1966

4 April 1966

CRIMINAL LAW - Unlawfully wounding with intent to do grievous bodily harm - Whether unlawfully doing grievous bodily harm open as alternative verdict - The Criminal Code (Queensland, adopted), ss. 317, 320, 323, 575, 579.

Section 579 of The Criminal Code (Queensland, adopted) provides as follows: “Upon 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 which is established by the evidence, and of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

Upon an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence which is established by the evidence and of which the unlawful causing of that result is an element.”

Held:

That upon an indictment charging a person with unlawfully wounding with intent to do grievous bodily harm it is open under the above section to find a verdict of unlawfully doing grievous bodily harm, if the evidence establishes such an offence.

Trial on Indictment.

The facts appear sufficiently from the judgment.

Counsel:

Croft, for the Crown.

Ley, for the accused.

Cur. adv. vult.

4 April 1966

FROST J:  The accused man is charged upon indictment, under s. 317 of The Criminal Code (Queensland, adopted), that on 18th December, 1965, with intent to do grievous bodily harm to one, Bawai-Siwoi, he unlawfully wounded Bawai-Siwoi.

It has now become necessary to consider what alternative verdicts are open under this indictment.

Mr. Ley, on behalf of the accused, does not dispute that it would be open to find an alternative verdict under s. 323 of unlawfully wounding, if that offence were established by the evidence: see s. 575.

But Mr. Croft, for the Crown, has submitted that it would be open to find an alternative verdict under s. 320 of unlawfully doing grievous bodily harm. He relies on s. 579 of the Code, and in particular on the second paragraph. Section 579 is as follows:

“Upon 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 which is established by the evidence, and of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

“Upon an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence which is established by the evidence and of which the unlawful causing of that result is an element.”

Mr. Ley argued that as the offence charged was unlawfully wounding with intent to do grievous bodily harm, an alternative verdict could be found only in respect of an offence of which unlawful wounding was an element. He submitted that s. 579 should be read down so as to exclude an alternative verdict for an offence involving a more serious consequence than the accused’s act as charged in the indictment, in this case, unlawfully wounding.

I am unable to accede to this argument. In my opinion there is no warrant for limiting the plain meaning of the second paragraph of s. 579. That provision goes further than s. 575, which operates when a person is charged with an offence committed with circumstances of aggravation, and enables a verdict to be brought in for an offence established by the evidence, but limited to an offence which is constituted by any act or omission which is an element of the offence charged. The relevant provision of s. 579 does not support any similar limitation. If the indictment charges a person with an offence, of which an intent to cause some specific result is an element, as in the present case, s. 579 enables him to be convicted of any offence which is established by the evidence and of which the unlawful causing of that result is an element, and without any limitation arising from any other element of the offence charged.

I consequently hold that upon the present indictment it would be open to bring in a verdict under s. 320, if the evidence establishes such an offence.

Ruled accordingly.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.