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State v John (No.1) [2011] PGNC 100; N4369 (9 August 2011)

N4369

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 37 OF 2010

STATE

V

GRACE JOHN (No.1)
Accused

Goroka: Ipang AJ
2011: August 4 & 9

CRIMINAL LAW – No case submission – Second limb or test in State v Paul Kundi Rape [1976] PNGLR 96 – Record of interview (ROI) consistent with medical report- Case to answer – Court proceed to hear defence case -no case submission over-ruled.

Cases Cited

State v Paul Kundi Rape [1976] PNGLR 96
State v Sange & Ors (2005) N2805
State v Nathan Kovohos CR No 163 of 2005 (N2810)

Counsel

Ms.B. Gore, for the State

Mr. M. Mumure for the Accused

DECISION ON VERDICT

08th July, 2011

1. IPANG AJ: This is a ruling on a no case submission by Mr. M. Mumure of Counsel for the accused Grace John at the conclusion of the prosecution's case. At the close of the case of the prosecution on the charge of grevious bodily harm (GBH) under s.319 of the Criminal Code Act, the counsel for the accused submitted that the evidence for prosecution is insufficient and therefore should acquit the accused.
   
2. In making this no case submission, Mr. Mumure of counsel for the accused invoked the second limb or the second test as stipulated in the case of State v Paul Kundi Rape [1976] PNGLR 96. The principle in Paul Kundi Rape case was further expounded in State v Sange & Ors (2005) N2805 & State v Nathan Kovohos CR No.163 of 2005, N2810. Basically, the question paused in the second limb or second test is;
   

"Although there is case to answer – is there sufficient evidence on the bases of which the court ought to convict the accused? This question arises in situations where evidence is so weak that reasonable tribunal of facts could base conviction."

If the answer to question 2 is "no" i.e. there is sufficient evidence, the trial judge has a discretion to either not call upon the accused (i.e. enter an acquittal) or order trial to proceed.

CHARGE

3. The accused Grace John was indicted on one count of unlawfully causing grevious bodily harm to another person Wendi Bruce contrary to Section 319 of the Criminal Code Act, chapter 262. The offence of unlawfully causing grevious bodily harm is provided for under Section 319 of the Criminal Code Act, which reads as follows:
   

"A person who unlawfully does grevious bodily harm to another person is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years.

4. In order for the State to establish this offence, it bears the onus of proving the following elements:
   
   • (i) A person (Grace John)
     
   • (ii) Who unlawfully does grevious bodily harm (bite off second right digit finger)
     
   • (iii) To another person (Wendi Bruce)
     

BRIEF FACTS

5. It was alleged that on Friday the 21st of August, 2009 at around 6:00pm the accused was at Kakaruk market in Goroka. At that time it was alleged the accused and her elder sister were under the influence of alcohol and both started an argument where eventually led to a fright with the accused husband. Because the accused husband Benben and the victim were brought up together at Piswara settlement, the victim went and told the accused husband to go home as it was too public and the accused conduct was not good in public.
   
6. The state further alleged that the accused swore at the victim, telling her all sorts of abusive words including that she would tear her and eat her liver so the victim got upset and wanted to punch the accused. In doing so, the victim's right pointer finger went into the accused's mouth. The State alleged that the accused bit that finger and cut it off completely.
   

STATE'S CASE

7. At the beginning of the State case the following documents were tendered with consent. These are;
   
   • (i) The Record of Interview (ROI) dated 02nd of September, 2009 both Pidgin version and the English translated version. Pidgin version is marked as "A1" and English version is marked as "A2"
     
   • (ii) The undated English statement of Investigator Det. F/Constable Brown Kafo marked as "B1".
     
   • (iii) The undated English statement of corroborator Constable Joe Mangre marked as "B2" and
     
   • (iv) The Medical Report dated 26th August, 2009 by HEO OIC Kaven Sinimi marked as "C".
     
8. Mr. Mumure of Counsel of the accused submitted that the Medical Report in terms of injuries sustained is consistent with the Record of Interview (ROI). He said that the ROI raises defence of provocation and the defence of self –defence. He said both defences are complete defences in law. Counsel referred this court to the ROI on questions and answers: Q9, Q14, Q15, Q16 & Q17. I will re-state the question given.
   

Q9. When you and your sister fought your husband, what happened at that time?

Ans: I and Lin my big sister were fighting with my husband; Wendi came and fought with me. She brought with another lady as well and fought with me. Both fought me and I fell down and got up again, she wanted to fight me and she pushed her finger into my mouth and I bite her finger and cut her finger.

Q14: Grace, did you know Wendi before?

Ans: No

Q15: Have you been argued or fought with Wendi before?

Ans: No

Q16: Is Wendi one of your husband's family member or what family relation to your husband?

Ans: She is not a family member of my husband or me as well. She is a different woman altogether but she entertained herself in to me and my husband's problems and got herself injured.

Q17: So you said that it was you and your husband's problem but why that lady came and involved and you cut her finger. Is that correct?

Ans: Yes

In question 13 the question was asked and the following answers were given.

Q13: Then she got crooked of your abusive language you said to her and tried to fight you and you bit her finger with your teeth and cut it. Is that correct?

Ans: I did not swear or use abusive language to her. But I bit her and cut her finger.

STATE'S REPLY TO NO CASE SUBMISSION

9. Ms. B. Gore of Counsel for the State submitted that in a no case submission, State is not required to prove its case beyond reasonable doubt. She said the accused admitted biting victim's finger. Therefore, she said defence of "self –defence cannot stand in this case. State Counsel also submitted that the force used is disproportionate and do not stand in as provocation. Medical Report shows that the victim suffered injuries.
   

COURT'S RULING

10. There are some evidence on each elements on the charge of grevious bodily harm (S.319 of the Criminal Code Act,) present when the alleged offence was committed. Refer to the Record of Interview (ROI) which is consistent with the Medical Report. Applying the second limb or second test in Paul Kundi Rape case, I find that there is evidence which establishes the elements of the offence. I will now over-rule the No case submission and order that the defence call their case.
    

____________________________________
A/Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused