Police v Elias [2001] PGDC 29; DC328 (23 August 2001)

DC328

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 35, 36 & 37OF 2001

Police
Complainant

V

Warren Elias, Phlip
First Defendant

Simon & Ian Semi
Second Defendant

Mt. Hagen: M. M. Pupaka
2001: 14th & 23rd August

Particular offence – Assault – Elements of offence – Defence of provocation raised – Evidence – Accused & victim all heavily drunk – Victim unable to recall much of what happened but seems to have uttered provocative words – Serious assault occasioning bodily injury – Whether retaliatory actions justified or equal to provocation.

Cases considered & applied:
R –v- Allan Evi [1975] PNGLR 30

Counsel
Sergeant Korowa for the Prosecution
The Accused in person

31st August 2001

M. PUPAKA, PM: These three accused persons; Warren Elias, Philip Simon & Ian Semi, are charged that they on the 17th of February 2001 at Warakum, in Mt. Hagen, "did each and severally assaulted another person namely, Dominic Wills a male adult" (sic). The charge is contrary to section 335 of the Criminal Code Act chapter No. 262 (the Code). Obviously the accused were meant to be charged jointly, but separate charges were preferred against each of them. It really does not matter. A valid charge of assault is disclosed against each accused in any event. Consequently a joint trial was conducted, which suited everyone concerned.

All the accused pleaded not guilty to the charge upon arraignment. In the trial that ensued the Prosecution called two witnesses and closed case. The accused were allowed ample opportunity to call evidence but only one of them – Warren Elias – testified upon oath. The other two accused elected to remain silent. The accused were further granted an adjournment to call witnesses but have failed to bring witnesses and have opted to close case.

A total of three witnesses, they being the two Prosecution witnesses and one of the accused – Warren Elias – have given evidence.

The Evidence

The evidence is straightforward; nearly all of it not disputed. It is that the victim (Dominic Wills) had been drinking liquor heavily on the 17th of February 2001. He had started drinking, with others, from around during the day and was still drinking when he was joined by these accused and two others, in the night, which they did at about 11.00PM to 11.30PM. What happened next is not too clear but there were some arguments between the victim and these accused and in the brawl that ensued the victim was punched and kicked repeatedly by these accused. The victim sustained a cut across the left side of his left eyebrow, which required stitches. The accused then proceeded to damage the victim’s car, which was parked outside the house at which the assault took place.

Whilst the victim says he can not recall what the argument was about and has no idea what the motives of the accused were, his witness – one Eurastus Dodi – says the accused were the aggressors. That witness further said he and the house owner were assaulted too by the accused and two others who were with them.

Warren Elias, who alone testified for the accused, said he and his friends were returning home after being out drinking. They live within the same housing compound where the victim then was. He said the house owner and his daughter invited them in. He further said the victim, who obviously too was a guest at the house, asked that they all contribute money to buy more drinks. One of the accused took out K100.00 as the accuseds’ contribution. Upon seeing the K100.00 the victim started derailing the accused and the two others, saying if K100.00 was all they could afford they had better leave. Warren Elias further alluded to swear words and expletives used by the victim. As a result of that there was a push and shove and punches thrown wherein the victim was injured. He received the cut on his face as alluded to above. After the accused had left the house, the victim was taken to hospital, where a doctor attended him. The cut on his face was stitched up. All indications are that the cut has otherwise healed well. He also had a swollen face for some time, which eventually abated.

Conclusion

No doubt the victim, Dominic Wills, was seriously assaulted. He suffered injuries. There is not much evidence, particularly from the accused, as to which of the accused the victim assaulted seriously enough to warrant a retaliatory assault. There is some assertion by Warren Elias that the victim punched Ian Semi on the nose and broke off his jersey, after which the victim punched him – Warren Elias. All these angered them (the accused) and so they punched the victim. However the level of damage done by the accused tells the story that has not been clearly told. The victim was seriously hurt and injured by these accused and their two friends. They assaulted others in the house too, (the house owner and the witness Eurastus Dodi). Added to that, the victim’s vehicle was smashed up. The damage to the vehicle is substantive. The repair cost is said to be some K3000.00. In whatever ways the victim had provoked these accused, the latter certainly showed very little or no restraint. The accused and their friends outnumbered the victim 5 to 1. The other people in the house did not get involved, though two of those in the house were assaulted by the accused. All these only go to show and magnify the level of aggression displayed by these accused.

I do not indent to repeat the provocative words uttered by the victim. Suffice to say those were offensive and belittling words, which may have had the effect of shaming, ridiculing, or embarrassing the accused. However I ask myself, would what was said justify the level of group assault upon the accused? I do not think so. If the victim assaulted any of the accused and if insulting words were uttered against them, they always had the prerogative to complain to the police and have the victim arrested and charged. They had no right to take the law into their own hands. Certainly no two wrongs can make a right.

I conclude, all things considered, that the level of assault did not equate to the amount of provocation. Further these accused had the strength, both in numbers and individual or collective force, to subdue and negate any serious threats levied against them by the victim. They not only overreacted; they were aggressive about it. Under these circumstances there is only one logical conclusion to be reached herein. I would find these accused, collectively and individually, guilty as charged and I do so.

There are two other points that I should mention at this juncture. First, all of them – these accused and the victim – were drunk. I have considered that factor at some length. Certainly nothing of what transpired would have occurred if every one involved were sober. I think it is fair to say that no one – be it these accused or the victim – is any the better or worse off against each other (vis-à-vis) for being drunk. They all took upon themselves, consciously and deliberately, to consume liquor. No one should blame his actions on the effects of alcohol. All consequences naturally flowing from the act of drinking are to be faced, and accepted as they are. See case of R-v- Allan Evi [1975] PNGLR 30.

Secondly I suspect the drunken behaviour of all these people had something or other to do with the girl called Prisca. The victim and the accused minds could have been adversely affected by presence of the girl, one way or the other, particularly whilst in a drunken state. I must repeat what I have just said. They should have acted like the responsible adults that they are. No one, either drunk or sober, should have allowed himself to be overwhelmed emotionally by the presence of a woman, particularly such as to cloud his better judgement.

In the end I find that a guilty verdict is in order. Ergo I find the accused, each and severally, guilty as charged on one count of assault, contrary to section 335 of the Code.

Sergeant Korowa: Complainant
In Person: Defendant