N3852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 689 OF 2008

THE STATE

V

NICK PINGA

Madang: Cannings J
2010: 2, 4 February

CRIMINAL LAW – grievous bodily harm, Criminal Code, Section 319 – trial – whether the accused was the person who did grievous bodily harm to the complainant.

The accused was charged with unlawfully doing grievous bodily harm to the complainant in a gathering at the accused’s residence, during which the accused and the complainant and other persons present had been consuming alcohol. The complainant had a bottle of beer smashed over his face and has lost sight in one eye.

Held:

(1)	There are two elements of the offence under Section 319: doing grievous bodily harm to another person; and doing it unlawfully.

(2)	The first element was not proven as, although the State proved that the complainant suffered grievous bodily harm by virtue of having a bottle of beer smashed over his face, it was not proven that the accused was the person responsible. The accused was accordingly found not guilty.

Cases cited

No cases are cited in the judgment.

TRIAL

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

Counsel

N Goodenough, for the State
A Turi, for the accused

VERDICT

4 February, 2010 

1. CANNINGS J: Nick Pinga, the accused, a middle-aged East Sepik man, is charged with unlawfully doing grievous bodily harm to the complainant, Pius Mon, a Western Highlands man aged in his 20s. The offence is said to have been committed during a drinking party at the accused’s residence at Gov Stoa settlement in Madang on the night of Saturday 11 August 2007. The State alleges the accused smashed a beer bottle over the complainant’s head, causing permanent loss of sight in the left eye. The complainant was at the time a student at the nearby Divine Word University.

2. It is agreed that the complainant was badly injured on the night of the incident and that he is now permanently blind in one eye.

ISSUES

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 offence has two elements:

•	doing grievous bodily harm to another person;

•	doing it unlawfully.

5. 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. 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.

6. Here, it is clear that the complainant’s eye injury was permanent. A report by Dr Demok of Modilon General Hospital confirms this. He suffered grievous bodily harm. So the issue is whether the accused was the person responsible for inflicting it.

7. As for the second element, Section 244 of the Criminal Code states that all assaults (including grievous bodily harm) are unlawful unless authorised, excused or justified by law. Bodily harm can be rendered lawful if a defence such as provocation, prevention of repetition of insult or self-defence applies (see Criminal Code, Sections 267-271). The accused is not relying on any such defences. He denies assaulting the complainant in any way. The only issue to be decided is therefore whether the accused was the person responsible for the complainant’s eye injury. If he was, he will be found guilty. If not, he will be acquitted.

WAS NICK PINGA THE PERSON WHO DID GRIEVOUS BODILY HARM TO PIUS MON?

Evidence for the State

8. Two witnesses gave evidence for the State.

9. The complainant, Pius Mon, said that early in the evening he was drinking with two friends: his roommate at DWU, Jeffery Elapa, and another man called Simon. They bought 18 bottles of beer at a place near the University and started consuming them. Nick’s wife came along and invited them back to her and Nick’s place to continue drinking.

10. They went there and were sitting down drinking and listening to music. Jeffery went away to get cigarettes and when he came back Nick hit him on the face. Jeffery fell, so he (Pius) got up from where he was sitting and the next thing he knew Nick swung a bottle of beer at him. The first bottle hit him on the face and cut him a bit but bounced off. The second one smashed on his face. He lost a lot of blood and fainted and then ran off in the direction of the University. He fell at the main gate and some friends saw him and came to his aid. Guard Dog security guards radioed for help and one of their trucks came and took him to Modilon Hospital where he stayed for three weeks.

11. He suffered a big cut on his head, his face was swollen and his left eye had to be operated on. As a result he is blind in that eye, with no chance of recovery.

12. In cross-examination Pius said that Jeffery is from Tari and he is a close family friend of Nick and his wife. He said there was no argument between himself and Nick. He does not know why Nick hit Jeffery. He was surprised when he saw that. That is why he got up to see what was happening.

13. It was put to Pius that it was not Nick who struck him with the beer bottles; it couldn’t have been Nick as he had a swollen right hand at the time and he is right handed. Pius replied that he did not know which hand Nick used but it was Nick who struck him and this happened after Nick had felled Jeffery.

14. The other State witness was Jeffery Elapa, aged in his 20s. At the time of the incident he was a DWU student. He now works in Madang as a reporter for The National newspaper. He confirmed that he was drinking with Pius and his friend when Nick’s wife, Christina, came along and invited them to her place. They went to Nick and Christina’s place and sat down outside and continued drinking. After a while he went to where Christina was sitting, then Nick came over to him, asked him who he came with, then punched him. He (Jeffery) was surprised by this and then his father, Peter, came into the yard and escorted him out of the area. As he was being helped out, he looked back and saw Nick lifting his hand but he did not see what he did with it or what happened after that.

15. In cross-examination Jeffery Elapa agreed that at one stage he was sitting with Christina and another lady, Priscilla, telling stories and laughing. He did not hear Nick get cross with him for touching the women. He only heard Nick call his name and then Nick punched him. Peter was the one who rescued him. He did not see any men enter the scene other than those who were already in Nick’s yard, drinking and talking and listening to music. He did not see Nick at any time hit Pius.

16. That was the close of the State’s case.

Defence witnesses

17. There were two defence witnesses.

18. The accused, Nick Pinga, said that on the evening in question he was sitting down in his yard listening to music. Christina returned from the market and he sent her to buy a six-pack of beer at Toby’s store. He remained with his brother, Noel, in the yard and when Christina came back with the beer she was followed by Jeffery (who is a good friend of the family) and Pius and his friend. He could see that they had all been drinking previously. Priscilla came with them and she was quite drunk.

19. After a while he observed that Jeffery was sitting between Christina and Priscilla and touching them. He was not happy about that. Priscilla was a married woman and he did not want any trouble so he told Jeffery twice to go and sit elsewhere. Jeffery agreed to do that but kept going back and sitting with and touching the two women. On the third occasion, the accused said, he slapped Jeffery (with an open fist) on the side of his face and said ‘how many times do I have to tell you?’ Then Noel came in and hit Jeffery on the head with a beer bottle. At that stage he (Nick) and Christina came to Jeffery’s assistance. But then some boys who were drinking outside heard the commotion and came in and chased Pius and his friend.

20. Nick said that he did not have an argument with Pius and bore no grudge against him. He did not hear about Pius’s injury until the next day. A few weeks later he and Christina reconciled with Jeffery: they bought him a six-pack and they drank together (presumably peacefully).

21. In cross-examination the accused said that though his right hand was in a sling he was able to drink his beer and change the CDs on his hi-fi with his left hand. He admitted that he was angry with Jeffery for causing problems with the women but denied hitting Pius with a beer bottle.

22. The accused’s wife, Christina Pinga, said that it was about 6.30 pm when Nick sent her to buy beer at Toby’s store. She bought the beer, went back to the house and then went to the front gate of the University to sell her daka. She returned to the house at 8.30 pm. Jeffery and Pius and Pius’s friend followed her in. Priscilla also arrived on the scene. Pius’s friend was saying inappropriate things to her (Christina’s) daughter, trying to befriend her, and this made Nick upset. Jeffery went away for a while and when he came back he was very drunk and sat down between her and Priscilla and was touching them and talking a lot. Nick got cross with Jeffery and after asking him three times to go and sit with his friends, slapped him on the face. Noel ran in with a half-full bottle of beer and smashed it over Jeffery’s head. Then she and Nick and Jeffery’s father, Peter, assisted Jeffery.

23. She did not see what happened to Pius or his friend.

24. In cross-examination Christina agreed that Nick was very angry with Jeffery who was their close friend. Nick had almost completed his six-pack when the problem with Jeffery erupted. She confirmed that she did not see what happened to Pius. She thinks that he must have been assaulted by others when he left the premises.

Whose version of events does the court believe?

25. It is, at first, hard to say, as none of the four witnesses was obviously telling the truth and none of them was obviously lying. However, I find the version of events given by the accused and his wife more believable for the following reasons.

26. First, Pius’s evidence was uncorroborated. The second State witness, Jeffery Elapa, did not see what happened to Pius. So the only evidence that the accused struck Pius came from Pius himself.

27. Secondly, it is clear that a lot of drinking was going on and those drinking included Pius. He was evasive (as were other witnesses, except Christina) when questioned about exactly how much he had to drink and the possibility cannot be ruled out that he had too much to remember who actually struck him with the beer bottles.

28. Thirdly, I thought that of the four witnesses Christina appeared to be the most reliable and sensible. She said she was not drinking and I accept her evidence. She did not see her husband strike Pius and I accept that evidence also.

29. Fourthly, no evidence was provided of a motive for Nick to smash Pius with a beer bottle. Mr Goodenough argued that as Nick was very angry with Jeffery, a close family friend, to the point where he assaulted him (before Jeffery was smashed with a beer bottle by Noel) the inference can be drawn that he was in a ripe condition to smash a beer bottle on Jeffery’s mate, Pius. The problem with this argument is that there is no evidence that Pius did anything wrong. If Nick was to smash anybody over the head it would surely have been Pius’s friend, the one who was trying to befriend Nick’s daughter. But this person appears to have escaped unscathed.

30. Finally, the State has been unable to rule out the possibility that Pius was struck by someone else; perhaps by Nick’s brother, Noel – the one who smashed Jeffery over the head with a beer bottle – or perhaps by one of the boys who rushed in from off the street upon hearing the commotion. Perhaps Pius was attacked when he was leaving the premises. There are too many loose ends in the State’s case. It was obviously a wild gathering, with a lot of drunken people present or in the vicinity. Two people had beer bottles smashed over their heads in the course of the melee and one has lost his eye as a result. Out of all the people who were present or nearby, only one person has come forward to give evidence: the complainant.

31. The State bears the onus of proving beyond reasonable doubt that Nick Pinga was the person who injured Pius Mon. Here there is considerable doubt. It has not been proven that Nick assaulted Pius in any way. He cannot therefore be guilty of doing him grievous bodily harm. There is no scope for entering an alternative conviction for a lesser offence. The accused must be acquitted.

VERDICT

32. Nick Pinga is found not guilty of grievous bodily harm and not guilty of any other offence and shall be discharged from the indictment.

Verdict accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused