Police v Saki [2001] PGDC 18; DC302 (7 March 2001)

DC302

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1443, 1444 OF 2000

Police
Complainant

V

Elma Saki
Defendant

Mount Hagen: Alva Arua
2001: 05th & 7th March

Section 20. Summary Offences Act – Without lawful excuse adjacent to premises – "Lawful Excuse" in s.20 means an excuse allowed or permitted by the civil or criminal law or any combination of the two.

Section 7 (b). Summary Offences Act – Provoking a breach of peace – using insulting words.

Cases Cited
John Anskor v. Jacob Yansua [1985] PNGLR
Steven Loho v. Micheal Hambindua [1985] PNGLR 286
Rex Kapu v. Demas Doria [1988] N727 – Followed.

Counsel
Sgt. Malt For Police
Accused In Person.

14th March 2001

ARUA: The defendant is charged with being adjacent to a premises without lawful excuse s. 20 of Summary Offences Act and using insulting words with intent to provoke a breach of peace s. 7 (b) of Summary Offence Act.

The facts of the two cases are that on 29th October, 2000 at around 7:30 am the defendant had gone over near to the complainant’s premises stood outside of the perimeter fence and said certain insulting words towards the complainant which resulted in a fight between them. The prosecutor called three witnesses who gave evidence as follows:-

Meggie Maimont: She was the complainant in the proceedings . She gave evidence that on that morning she was in her kitchen preparing breakfast for her family. She was in the kitchen when the defendant came over and stood outside the perimeter fence and called out "lapun meri yu kam na yuim kot". Upon hearing that she went out to the verandah of her house and asked the defendant what right she had to go to her yard. The complainant then went towards her and pushed her out upon which the defendant held her by the hair and fight ensued.

During the fight and argument the defendant uttered words to the effect .."yu lapun meri, man bilong yu les long kuapim yu. Traipela bel bilong yu pasim kan bilong yu. Man bilong yu save kaikaim kan bilong mi....." Upon hearing those words the complainant felt so bad and that she lost control. She mentioned that in her 27 years of married life she had never faced any problem. Though she should have taken some personal actions. She just prayed and referred the matter to the police. She felt hurt because the words were spoken in the presence of her five children.

The prosecution called two other witnesses namely, Joyce Maniat and Rose Mine Sam. These two witnesses corroborated the evidence of the complainant confirming that the defendant did go to the gate that morning and did call out to the complainant about a case in the village court. They also confirmed the arguing fight and the subsequent insulting words spoken by the defendant to the complainant.

In defence the defendant gave evidence under oath herself and called two witnesses who were the two ladies who were with her when she went to the complainant’s residence to tell her about the village court case.

The defendant’s evidence is that she had gone to the complainant’s premises to tell her about a village court case that afternoon. That was after she had reported the complainant to the village court for swearing at her the previous day. She said she had stood outside the gate and complainant told her brother and sister who were in the yard washing a vehicle to inform the complainant about the village court case that afternoon. After having told them she had left to walk back to her house when Meggie, her children and a brother and sister went after her and fought her. She says she never retaliated.

Lina Karl the first defence witness gave evidence that she had gone to the store that morning to buy soap. On her return she met the defendant on the way. The defendant then told her that she was going to the complainant’s place to tell her about a village court case that afternoon because the complainant had swear at her the previous day.

Lina was then invited by the defendant to go with her to Meggie’s place. At the complainant’s place they stood outside the gate while the defendant spoke to Meggie’s brother and sister to tell Meggie about a village court case that afternoon. Having informed them, they then left. About two houses away Meggie and her brother and sister went after them and fought Etone. They broke the defendant’s clothes and left.

The second defence witness Lynette Iama basically confirms Lina’s evidence. I do not wish to restate her evidence in details here again.

ISSUES:

(i) Whether the defendant’s presence adjacent to the complainant’s dwelling house was unlawful and therefore she ought to be convicted; and

Whether from the evidence she did utter the insulting words with intent to provoke or breach of peace?

Section 20 of the Summary Offences Act, Chapter. 264 provides...

20. Unlawfully on Premises.

"A person who without lawful excuse, is in, on or adjacent to any premises is guilty of an offence........"

The position as it relates to offences committed contravening to Section 20 is quite clear in this jurisdiction. Several cases have been decided by the National court touching or discussing the factors that have to be established before one can be convicted under Section 20.

Generally most of the decided cases seem to point out that a person charged with an offence under s. 20 shall be guilty of the offence. If his conduct is preparatory to or in furtherance of some criminal purpose, Anskar v. Yansuan [1985] PNGLR, Steven Loho v. Micheal Hambindua [1985] PNGLR 286 etc. Basically that the presence of a person on or adjacent to a premises is unlawful if his behaviour gives rise to a wrong that may be sanctioned by a criminal law.

However, in the 1988 case of Rex Kupu v Demas Doria (1988) N727 it was held by Predmeyer J that—

"lawful excuse in s.20 means an excuse allowed or permitted by the civil or criminal law or any combination of the two..............."

While the earlier cases had tried to limit the phrase "lawful excuse" as it applies within the context of the criminal law Rex Kupu’s case extended it to included "Lawful" as permitted by civil law as well. Such a situation would include where a person was unemployed and residing with his uncle in company labour quarters after he had been ordered to leave or a young man going onto a premises in late night with an intention of having sexual intercourse with a married woman etc. In the present case, the question that has to be asked is whether the defendant’s presence adjacent to Meggie’s residence was lawful or sanctioned by the criminal law or civil law of this land? To establish that one has to say why did she go there? For what purposes? If she went there for a purpose or a reason was her purpose or reasoned excused by the criminal or civil law?

Section 2 of the Summary Offences Act Chapter 264 places the onus of proving lawful excuse on the person charged with the offence to prove on the balance of probabilities.

The burden is therefore on the defendant to prove before this court that her presence adjacent to Meggie’s residence (premises) was lawful and she has to establish this on the civil standard of "on balance of probabilities".

Evidence from the defendant is that she initially went to tell the complainant (Meggie) about village court case coming up between them that afternoon. Having relayed the message she had left to walk back to her house when she was assaulted by Meggie, and her brother and a sister. Her evidence of going over to Meggie’s place to tell her about a village court case that afternoon is confirmed by her two witnesses.

Even the complainant (Meggie) herself stated in her evidence that she was in the kitchen when the defendant went and stood outside the perimeter fence and called out "lapun meri – yu kam na yuim kot". Such statement from the defendant initially about the village court case in confirmed by the complainant’s daughter Joyce who was the second police witness and who was present at the verandah that time.

The evidence from the complainant and her daughter confirms the defendant’s evidence that she had initially gone there to inform about a village court case that afternoon.

Maybe the manner in which she relayed the message, the tone of her voice and the selection of her words may have been impolite and improper which resulted in argument and fight later on with Meggie.

Can her going to Meggie’s place to tell her about a village court case be said to have some form of criminal element in it? I do not think so. Was her presence adjacent to Meggie’s premises excused by criminal or civil law? I do not find any evidence of her presence that was preparatory to or in furtherance of some criminal purpose.

In this jurisdiction it is quite normal for complainant is civil complaints or cases to effect service of their summons upon defendants. There were situations where sometimes the complainant in a case turns up at a defendant’s place of residence or work to serve summons or even inform them of court cases. Such presence of persons in such places for the purposes of service of summons or informing of pending court cases to my mind is excused by the civil law.

I am of the view that her presence or reason for going adjacent to Meggie’s premises is excused by civil law. She went there to initially inform Meggie about a village court case that was coming up that afternoon. Such position is confirmed by Meggie herself and her daughter Joyce who both testified that the defendant shouted or called out to her from outside the fence about a case at the village court that afternoon.

The defendant’s fault may have been that she could have used someone else probably one of the village court clerks, peace officer or even the police to relay that message as her presence at Meggie’s place could provoke argument, fight or breach of peace because of her adulterous, relationship with Meggie’s husband. While the whole incident arose as a result of the defendants adulterous relationship with Meggie’s husband and surely her presence at Meggie’s residence or near it would provoke a breach of peace she was not there to commit adultery or entice the complainant’s husband which could have rendered her presence there unlawful or not excused by civil law.

It may also be argued that the defendant failed to produce a village court summons for the case which is normally the procedure to explain and confirm her presence near Meggie’s place that she had in fact gone there to inform her of a case. Whether the actual complaint was filed and registered at the Village court or not and was to be heard that afternoon was not established in court. The proof of such case registered with the village court to be heard that afternoon or not registered would have assisted to ascertain whether she merely went for an argument to get even with Meggie for swearing at her on the previous day which would have rendered her presence there unlawful and therefore in furtherance of some criminal intent or whether she went there to inform of a genuine case.

Though the actual registration of the case in village court was not established by the defendant by failing to produce an official copy of the village court summons. I do accept her evidence as confirmed by the complainant (Meggie) and her daughter Joyce that the defendant had initially gone there to inform of a village court case between them that was coming up that afternoon.

In my view that purpose was not furtherance of or preparatory to some criminal intent or that such act of going adjacent to Meggie’s premises initially to inform her of a village court case does not give rise to any wrong that is sanctioned by a criminal law. I am satisfied that her purpose for going adjacent to the complainant’s premises initially to inform about a village court case though not politely relayed etc was allowed or permitted by the civil law. Basically she had gone there to sort of serve summons or inform of village court case which is a procedure allowed under or practiced under the laws of this land.

Accordingly I dismiss the charge of being without lawful excuse adjacent to premises contrary to s. 20 of the Summary Offences Act c. 264.

Section 7. Provoking a breach of peace.

6. A person who –

(a)..............

(b) uses threatening, abusive or insulting words; or

(c) .................

with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence.

The defendant is also charged for using insulting words contravening to Section 7(b) of the Summary Offences Act chapter 264.

Again the facts of the charge is as outlined earlier in my discussion of the charge of unlawfully on premises. I do not intend to restate the whole evidence here.

But briefly, the defendant had gone initially near the complainant’s premises, stood outside the gate and shouted or called out to the complainant about a village court case between them that afternoon. The complainant having heard her had gone out to the gate and asked her what right the defendant had to go to her yard. Meggie then pushed the defendant out of the gate upon which the defendant held Meggie by the hair. A fight ensued and in the course of which the defendant uttered words to the effect..."man bilong yu les long koapim yu, traipela bel bilong yu karamapim kan bilong yu, man bilong yu save kaikai kan bilong mi, save kauntim kan gras bilong mi........".

The utterance of the insulting words is also confirmed by the second and third Police witnesses namely Joyce and Rose who happen to know the parties well as residences of same area in the city and also same church goers.

I have studied both second and third prosecution witnesses and they appeared to give a straight forward evidence. Their demeanour and prosecution was good.

The defendant basically denied saying such words. She was supported by her two witnesses Lina Karl and Lynette Iama. Both witnesses testified that they were with the defendant at that time. However when the fight broke out they had gone some distance away for the fear of being included with the defendant. They both said they never heard the defendant say any insulting words.

The law on the proper elements and evidence necessary to sustain conviction under s.7(b) is clear in this jurisdiction. Mere use and proof of use of insulting words etc is insufficient. Such must be objectively proven that such remarks were intended to provoke a breach of peace or whereby a breach of peace was likely to take place. If the words are just uttered in the heat of an argument with nothing more and shortly thereafter the person saying the words leave them clearly no breach was ever likely to take place.

7. The burden is on the prosecution to prove that the defendant had by saying those words intended to provoke a breach of peace or the words were such that a breach of peace was likely to take place.

I have considered the evidence adduced before me by the prosecution and the defence. I am satisfied that the defendant did utter those insulting words as confirmed by the complainant and the second and third police witnesses.

Though the defendant denied saying the words and she is supported by her two witnesses. I do not accept their evidence. The two defence witnesses admitted being some distance away when the argument and fight started. Consequently they did not hear due to the distance or they were merely lying. I found their demeanour was not good. Their presentation and replies to questions under cross-examination were somewhat delayed and evasive. They even failed to identify who stopped the fight.

I am also satisfied that the nature of the words spoken, their meaning and the fact that they were uttered within the hearing range of the complainant’s children makes it very bad and more likely to provoke a breach of peace if they were directed at any ordinary person. In fact the complainant felt so hurt and felt out of control when she heard the words. What then ensued is a fight as a result of such words spoken by the defendant. So the words in actual fact did breach peace. A fight erupted during which the defendant was assaulted by the complainant and her brother and sister resulting in the defendant sustaining torn clothes etc.

I therefore found that the prosecution has proven this charge beyond reasonable doubt.

I find the defendant guilty of using insulting words contrary to section 7(b) of the Summary Offences Act Chapter 264. I convict her accordingly.

Sergeant Malt: Complainant
In person: Defendant