N3921

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 705 OF 2008

THE STATE

V

MARK MONDO BASSOP

Madang: Cannings J
2010: 17, 18 February, 4 March

VERDICT

CRIMINAL LAW – grievous bodily harm with intent, Criminal Code, Sections 315(b) and (d) – trial – whether accused did grievous bodily harm – whether alternative conviction available – Criminal Code, Section 542 (charge involving specific result).

The accused was charged under Sections 315(b) and (d) of the Criminal Code with unlawfully and intentionally doing grievous bodily harm to the complainant. He admitted kicking and slapping her but denied inflicting any serious injury or having any intent to do so.

Held:

(1)	There are three elements of the offence under Sections 315(b) and (d): that the accused "did grievous bodily harm" to the complainant; that he did it "unlawfully"; and that he "intended" to do grievous bodily harm.

(2)	To determine whether the first element is satisfied, reference must be made to the definition of "grievous bodily harm" in Section 1 of the Criminal Code: "any bodily 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".

(3)	The second element is proven if there is no lawful justification or excuse for the accused's action. If a specific defence (eg self-defence or provocation) is raised the prosecution bears the onus of disproving it.

(4)	The final element is proven by examining all the circumstances of the case and making an assessment of the accused's state of mind.

(5)	It is open to the court on an indictment for intentionally doing grievous bodily harm under Section 315 to enter an alternative verdict of guilty of a lesser offence, eg unlawfully doing grievous bodily harm (Section 319), unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340), and serious assault (Section 341).

(6)	Here, the first element was not proven as the evidence did not show that the complainant's injuries were as serious as claimed. Therefore the accused could not be found guilty of the offence he was charged with.

(7)	However, he was convicted of a lesser offence as it was proven that he assaulted the complainant and caused her bodily harm and did so unlawfully.

(8)	Accordingly, the accused was found guilty of assault occasioning bodily harm, contrary to Section 340 of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Hutchings (1972) No 710
R v Meauri [1969-1970] PNGLR 259
The State v Alphonse Dumui CR No 14 of 2006, 08.04.09
The State v Buka Mapusi, CR No 23 of 2008, 15.10.08
The State v Norman Kukari (2009) N3635

TRIAL

This was the trial of an accused charged with unlawfully and intentionally doing grievous bodily harm.

Counsel

M Ruarri, for the State
A Turi, for the accused

4 March, 2010 

1. CANNINGS J: Mark Mondo Bassop, the accused, is a 35-year-old man from Kambaramba village in the Angoram District of East Sepik Province. He lives with his family in the Wagol Fikus settlement in Madang town. There was an incident in the settlement on the afternoon of Saturday 25 August 2007 that has led to him being charged with unlawfully and intentionally doing grievous bodily harm to his aunt, the complainant, Helen Malai. He admits to kicking her once in the thigh and slapping her once on the face but denies kicking her more than once on vulnerable parts of the body, as alleged by the State. He also denies hitting her with an axe on multiple occasions and punching her to the extent that she had to spend a month in hospital, those allegations also being part of the State's case.

ELEMENTS OF THE OFFENCE

2. The accused has been charged under Sections 315(b) and (d) (acts intended to cause grievous bodily harm or prevent apprehension) of the Criminal Code, which states:

A person who, with intent …

(b)	to do some grievous bodily harm to any person …

does any of the following things is guilty of a crime:—

(d)	unlawfully … doing a grievous bodily harm to a person …

Penalty: Subject to Section 19, imprisonment for life.

3. This offence has three elements:

•	the accused did grievous bodily harm to the complainant;
•	unlawfully; and
•	with intent to do grievous bodily harm.

(See The State v Alphonse Dumui CR No 14 of 2006, 08.04.09 and The State v Norman Kukari (2009) N3635.)

4. As to the first element, there is a definition of "grievous bodily harm" in Section 1 of the Criminal Code. It means:

any bodily 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.

5. The second element raises the issue of whether the harm was done unlawfully. Doing grievous bodily harm to another person constitutes an "assault" as defined by Section 243(1) of the Criminal Code. An assault is, by virtue of Section 244(1), unlawful unless it is authorised, justified or excused by law. There are a number of defences, which, if successful, can authorise, justify and excuse the accused's conduct and render the bodily harm lawful. They are set out in Sections 267 to 271 of the Criminal Code, eg provocation, prevention of repetition of insult and self-defence. The accused did not formally raise any of these defences.

6. The third element concerns the accused's state of mind: did he intend to do grievous bodily harm to the complainant?

7. If the State fails to prove all elements of the offence the accused can by virtue of Section 542 of the Criminal Code be found guilty of a lesser offence.

ISSUES

8. The major issues are:

1	Did the accused do grievous bodily harm to the complainant? 

2	If he did not do her grievous bodily harm, did he assault or harm her? 

3	Should the accused be convicted of some other offence? 

1 	DID THE ACCUSED DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?

9. Determination of this issue requires:

•	a summary of evidence for the State;
•	a summary of evidence for the defence;
•	a preliminary assessment of the State's case;
•	a summary of defence counsel's submissions;
•	assessment of defence counsel's submissions; and then
•	final determination of the question whether the accused did grievous bodily harm to the complainant.

Evidence for the State

10. Two witnesses gave evidence for the State: the complainant and her sister. There was no other evidence – no medical evidence, no exhibits, no record of interview, no witness statements. 

11. (1) 	The complainant, Helen Malai said that at 3.00 pm she was at her house at Wagol Fikus, in the Kambaramba compound, with her little sister. The house of the accused, Mark, is only seven metres from her house. She was sitting on a small platform when Mark attacked her with an axe and kicked her. He struck her with the blunt side of the axe on the side of her body and her back. He kicked her in the stomach and the back, a total of five times. She fell and vomited, urinated and excreted. Her sister got an ambulance and took her to the hospital where she stayed for one month. She does not know why he attacked her. She bore no grudges against him and offered him no provocation. He attacked her for no reason. He had been up all night drinking yawa. He was drunk. He had attacked her once before, in 2003.

12. In cross-examination she denied insulting Mark or swearing at him either in the morning or immediately prior to the incident. She denied knowledge of any fight earlier in the day between her brother, Thomas, and Mark. She denied that Mark had a good reason to be cross with her and that what he did was kick her, only once, on her leg and slap her on the face, once, with an open fist. She said that she was holding her child on her lap when Mark attacked her. The child fell but Mark did not hit the child with the axe. She denied that Mark's wife, Mina, and mother, Lena, were present.

13. (2)	The complainant's sister, Lucy Piksa also lives at Wagol Fikus. She was with Helen, eating sago, when Mark approached Helen, drunk. He hit Helen with an axe three times and kicked her with his iron boots on her side, front and buttocks. She fell unconscious. She vomited, urinated and excreted. She (Lucy) washed Helen, called an ambulance and took her to hospital. She stayed for one month.

14. That was the close of the State's case.

Defence witnesses

15. The accused gave sworn evidence and there were two other witnesses: his wife and his mother.

16. (1)	The accused, Mark Mondo Bassop, said he was not up all night drinking, as claimed by the complainant. He had a few beers on Friday night, that is all. On Saturday morning he worked for the first half of the day as he had a job with Rookes Marine. He returned to the house in the afternoon with his wife, Mina, who had also been working on Saturday morning. 

17. He had had an argument with Helen's brother, Thomas, earlier in the day and Helen had taken her brother's side and threatened him and said abusive and offensive things to him. When he (Mark) came home from work she repeated the things that she had said to him earlier in the day so he got angry and hit her. He kicked her, once, on the left thigh and slapped her, once, with an open hand, on the left side of the face. He knew he was striking a woman so he did not kick or slap hard. He only kicked once and slapped once and his wife and mother stopped him doing anything more. She suffered no injury. She got her bilum and walked off, and said that she would report him to the police; which she did, as after she left the police came and arrested him and put him in the Jomba Cell for four days. 

18. In cross-examination the accused said that Helen did not fall heavily after he hit her. She just slid off the small bench she was sitting on. He denied kicking her in the stomach or in the back.

19. (2)	The accused's wife, Mina Mondo Bassop, said she returned with Mark to the settlement on Saturday afternoon. She was with him when Helen started talking a lot about the argument Mark had had early in the morning with her brother, Thomas. This made Mark angry so he kicked her once and slapped her once. She and his mother intervened and took him to the house.

20. In cross-examination Mina denied that Helen vomited, urinated or excreted. Lucy did not wash her and did not have to get an ambulance. Mark did not have an axe.

21. (3)	The accused's mother, Lena Apu, said that she heard that her son had kicked Helen and attacked her with an axe and that she lost a lot of blood so she went to the hospital to check on her. She was surprised to find that Helen did not have any serious injuries. Her body was very hot and she asked Lena to wash her, but that was her only problem. Lena washed her and Helen told her that she would not be taking any further action against Mark and that they would sort out their problem 'the customary way'.

22. In cross-examination Lena confirmed that she was not present when Mark hit Helen. She (Lena) went to the hospital and saw that Helen had an intravenous drip on her.

23. That was the close of the defence case.

Preliminary assessment of the State's case

24. In the absence of medical evidence the State's case is heavily reliant on the credibility of the State witnesses, particularly the complainant.

Defence counsel's submissions

25. Ms Turi submitted that the State's case should fail as the State witnesses lacked credibility and their evidence was inconsistent, whereas the defence witnesses, by contrast, gave strong evidence. Furthermore, there was no medical evidence to support the claims that the complainant was badly injured or in hospital for an extended period.

Assessment of defence counsel's submissions

1	State witnesses lacked credibility

26. Ms Turi submitted that both the complainant and her sister, Lucy, were uptight and evasive and that their evidence did not match and was obviously manufactured.

27. I do not agree that they were evasive witnesses or that their demeanour in the witness box made their evidence obviously unbelievable. They were a little nervous but many witnesses are, including truthful ones. As to the inconsistencies in their evidence, there were some, eg as to the number of times that Helen was kicked and hit with the axe, where on her body the blows landed and what Helen was doing at the time (holding her child or eating?). These were matters of detail regarding an incident that happened almost two and a half years ago and in the circumstances I do not think the inconsistencies were significant.

2	Defence witnesses gave strong evidence 

28. Ms Turi submitted that the three defence witnesses were more reliable than the State witnesses. The accused gave a credible account of what really happened. He had an argument with Helen's brother earlier in the day and Helen took sides with her brother and insulted and abused Mark, then in the afternoon, well after the argument had finished, she wanted to bring everything up again. She repeated the insults and the abuse from the morning. That is why he got so angry with her. As to Mina, she fared well in cross-examination. Lena did not try to pretend that she saw what happened in the incident between Mark and Helen. She confined her evidence to what she saw when she visited Helen at the hospital.

29. I do not agree that because of their demeanour the defence witnesses were obviously more reliable than the State witnesses. They actually shared one attribute with the State witnesses: their evidence seemed carefully rehearsed.

3	Lack of medical evidence

This was the defence counsel's strongest argument.

30. I agree that it was strange that a case such as this was prosecuted without medical evidence of any description. Mr Ruarri indicated at the opening of the State's case that a doctor would give evidence of the complainant's injuries, but when the time came for the doctor to give evidence Mr Ruarri said that the doctor was out of the country. The State's case was closed. This was an unsatisfactory state of affairs. As the doctor was not available the State could have, for example, arranged to have a nurse who treated the complainant give evidence or adduced the complainant's hospital records.

31. As it turned out the court was left with no medical evidence to go by. In these circumstances the State has failed to prove that the complainant suffered the sort of injuries alleged. To reach the conclusion that she suffered grievous bodily harm I would have to accept the evidence of the two State witnesses and reject outright the version of events given by the defence witnesses. There is no good reason to do that.

Final determination of whether the accused did grievous bodily harm to the complainant

32. The lack of medical evidence drives the conclusion that the accused did not do grievous bodily harm to the complainant. The first element of the charge under Sections 315(b) and (d) has not been proven.

2	DID THE ACCUSED ASSAULT OR HARM THE COMPLAINANT?

33. The accused admits kicking and slapping the complainant. He says that there was one kick to the thigh and one slap to the face and that they were both mild blows. His evidence is directly corroborated by his wife's evidence and indirectly corroborated by his mother's evidence about going to the hospital the next morning to see the complainant.

34. However, I reject this part of the defence case. The accused's mother went to the hospital the day after the incident as she had heard that Helen was badly injured by her son and wanted to check on her welfare. The only reasonable inference to draw from the evidence is that when Mark struck Helen he hit her hard enough for her to require hospitalisation. Even if Lena's evidence is accepted – that Helen was showing no obvious signs of a serious assault and was only running a high temperature – she must have been dealt some severe blows to require her going to the hospital and being on a drip; Lena's visit being close to one day after the incident.

35. I consider that the truth lies somewhere between the two versions of events given by the State and the defence witnesses. None of them told the whole truth. Mark assaulted Helen, not as badly as the Sate witnesses made out but more seriously than described by the defence witnesses. The force of the blows was sufficient for Helen to require hospitalisation. I find that she went to the hospital on the Saturday afternoon, soon after the incident and that she spent at least one night in hospital and was still there when she was visited by Lena the next morning.

36. As for putting a legal label on the injuries inflicted on her, the best description is that Helen suffered bodily harm, not grievous bodily harm. "Bodily harm" is defined by Section 1(1) of the Criminal Code to mean:

any bodily injury that interferes with health or comfort.

3	SHOULD THE ACCUSED BE CONVICTED OF AN OFFENCE?

37. The effect of Section 542 (charge involving specific result) of the Criminal Code is that if an accused is charged with an offence under one of the provisions of Division V.4 (offences endangering life or property) and the State cannot prove all of the elements, he can be convicted of an alternative offence of a similar but less serious nature; provided, of course, that all elements of the lesser offence are proven (see R v Meauri [1969-1970] PNGLR 259).

38. Section 542(1) relevantly provides:

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 … a result of a similar but less injurious nature, is an element.

39. In the case of an accused charged under Sections 315(b) and (d) the most likely lesser offences will usually be:

•	unlawfully doing grievous bodily harm (Section 319);
•	unlawful wounding (Section 322(1));
•	common assault (Section 335);
•	assault occasioning bodily harm (Section 340(1));
•	serious assault (Section 341).

40. In the present case an alternative conviction for the following offences is not available:

•	unlawfully doing grievous bodily harm, as the grievous bodily harm element is absent;
•	unlawful wounding, as there is insufficient evidence that the whole of the complainant's skin was severed (as required to constitute "wounding", see R v Hutchings (1972) No 710);
•	serious assault – as none of the other elements, eg assault with intent to commit a crime or to resist arrest exist.

41. However, an alternative conviction is available for two offences:

•	common assault;
•	assault occasioning bodily harm.

42. The offence of common assault is created by Section 335, which states:

A person who unlawfully assaults another person is guilty of a misdemeanour.

Penalty: If no greater punishment is provided, imprisonment for a term not exceeding one year.

43. As I pointed out in The State v Buka Mapusi, CR No 23 of 2008, 15.10.08, common assault has two elements:

•	assaulting the complainant;
•	unlawfully.

44. "Assault" is defined by Section 243(1) of the Criminal Code:

A person who—

(a)	directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or
(b)	by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

45. There is no doubt that Mark directly struck Helen without her consent by kicking and slapping her. He assaulted her. He did so unlawfully as he has provided no lawful justification or excuse for doing so. There was some evidence of the defence of prevention of repetition of insult under Section 268 but it was not raised formally as a defence and I consider that the prosecution would have been able to disprove its elements. So it does not apply.

46. The offence of assault occasioning bodily harm is created by Section 340(1), which states:

A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

47. It has three elements:

•	assaulting the complainant;
•	unlawfully; and
•	by doing so, doing bodily harm.

48. I have already concluded that the accused assaulted the complainant and did so unlawfully and that he inflicted bodily harm. All three elements have been proven beyond reasonable doubt.

49. The accused can therefore be convicted of either common assault or assault occasioning bodily harm. The prosecutor invited the court to enter a conviction for assault occasioning bodily harm. It is the more serious of the two offences (carrying a maximum of three years imprisonment compared to one year for common assault). The normal practice is for the court to enter a conviction for the most serious of any available alternatives and that is what I consider is the most appropriate course of action in this case. A conviction will be entered under Section 340(1).
 
VERDICT

50. The accused, Mark Mondo Bassop, is found not guilty of unlawfully doing grievous bodily harm, with intent, contrary to Sections 315(b) and (d) of the Criminal Code, but guilty of assault occasioning bodily harm, contrary to Section 340(1) of the Criminal Code.

Verdict accordingly.
____________________________

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