Sinel v Coomer [2000] PGDC 37; DC248 (10 November 2000)

DC248

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2541 ,918 OF 2000

BETWEEN

Michael Sinel
& Others
Complainants

V

John Coomer
& Other
Defendants

Mr Iova. S. Geita - Senior Magistrate
Date: 4th October, 10 November 2000

Counsels
Complainant in Person
Defendant in Person

Reasons for Decision

GEITA - The Complainant has come to this Court by way of an Information to restrain the Defendant and his immediate family members from assaulting, threatening and using abusive language to him. A summons was issued on 3rd August commanding the Defendant to answer summons on 15th August 2000. The Defendant has retaliated by taking out a Summons upon Complaint seeking compensation against the Informant for unlawful assault. In an attempt to expedite proceedings both parties agreed to have their complaints consolidated and heard together as all evidence before Court arose from the same incidents complained off.

The brief facts of the case are these:-

The Informant and the Defendant have been having an on going indifference since 1998 over what appears to be incidents which involved beer and women. Of the four incidents since 1998 the Informant spoke about the Defendant coming into the Informants premises at will and making a nuisance of himself. Two of those incidents relate to the Defendant bringing in woman friends, whilst under the influence of liquor and demanding the Informant to do certain things against his will. In another incident, again some people were hurt; including the Informant resulting in money and food being exchanged to make amends.

The most recent incident being 30th July 2000 when the Defendant again went into the Informant's premises and removed a bunch of banana from the Informants tree without permission. As the Informants puts it, " he unlawfully entered my premises whilst being drunk, stole my bunch of bananas and attempted to escape in his vehicle when he was confronted." As a result a fight ensued in which both parries received injuries. The Informant sustained injuries and likewise the Defendant sustained injuries but came out the worst hence his complaint for compensation.

The next day the Defendant retaliated by mobilising his three sons and daughter who broke the Informants gate entered his premises and terrorized the Informant and his family members. The Informant escaped by climbing through a neighbor's fence and alerted police who attended to the scene.

The Informant's wife and an independent witness also gave affidavit evidences in support of the Informant.

In response the Defendant admitted entering the Informants premises uninvited on 29th July 2000 and in his own words ripping of the banana from the tree and taking it to his vehicle. "Whilst on his way out of the Informant premises the Informant's wife returned from the market and noticed what he had done.

According to the Defendant he put the banana in his car and as he was driving out the Informant arrived and took the banana from the truck and he than drove off without it. The Defendant also alleges that the Informant threw a big stone at the vehicle but missed it.

According to him he returned with her wife demanding an explanation from the Informant why the stone was thrown at his vehicle and why the banana was removed from his car. He maintains that he only slapped the Informant on the face and they both exchanged punches and he fell to the ground as he was drunk. He alleges that whilst on the ground he was punched and hit with an iron bar resulting in him receiving fifteen stitches to his head and lips. He submitted a medical report in support of his evidence.

The next day the Defendant and his family members returned to the Informant's premises seeking an explanation as to why their father was assaulted. He admits his family members unlawfully entering the Informant's premises and damaging the Informant's front door.

The two issues as I can see from the evidence before me is the constant threats, harassment, assaults and whether the assault occasioned on the Defendant's body was indeed unlawful.

I am satisfied that there is overwhelming evidence to support the complainant that the Informant was living in real fear and danger from the Defendant's attacks. I find on the balance of probabilities mat the Informant and his family are entitled to the protection of law.

With regard to the second issue of assault, although there is evidence of it being occasioned by the Informant. The same can be said for the Defendant. He and his family members must bear' some responsibility in the sufferings brought upon by the Defendant.

This is a Court of law and impartiality hence all acts of violence whether small or big are condoned in the strongest possible terms. In the instant case there is plenty of evidence to suggest that it was the defendant who left the safety of his house and made himself vulnerable to attacks on his person. Put simply he went out of his way looking for trouble and copped it. On those four occasions you were drunk, you weren't invited into the Informant's premises, you were unlawfully on premises, you stole from the Informant's garden, you damaged the Informant's door. The list goes on.

I might add here that your demeanor was observed and it appears to me that there was uneasiness and tenseness every time the Informant was in court. He appears to be visibly scared of you and your family members. This has not been helped by your built compared to the Informant. The Defendant is a well built strong stocky man and the Informant thin in built and very slim. Compared with that the Defendant is a soldier and holds a rank of Warrant Officer.

Despite the assault not being in dispute the Defendants only witness was his wife. As it turned out they both have pointed a slightly different picture to that of the Informant's version. The Informant likewise was assisted by his wife however the turning point is that an independent eye witness account was available for the Informant.

He gave an independent observation of what he saw and how it all happened I am more inclined to believe the eye witness account of the incident of assault. I regret to say here that I have not been convinced by the Defendants version of the incident and eventual assault. Either his recollection of events was bad or he was advanced a lot of falsehood in his affidavit. I am satisfied that much of the blame lies on the Defendant and he has greatly contributed to his own predicaments. I therefore find that his complaint for compensation is dismissed. I further order that the Informant's complaint for a restraining order against the Defendant or his immediate family is made out.

1. The Defendant and his immediate family members are therefore restrained from assaulting, intimidating harassing and or using abusive language to the Informant and his family forthwith.

2. The Defendant and his family members be restrained from entering the Informants residence or place of work unless otherwise asked to do so.

3. Upon breach all members of the Police Force be empowered to arrest and bring the Defendants before the Court to be dealt with accordingly.

4. The above orders to take effect forthwith and to remain in force for the next twelve (12) months.

5. Orders accordingly.