State v Aiven [2001] PGDC 33; DC449 (1 October 2001)

DC449

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 126 OF 2001

State
Informant

V

Willie Aiven
Defendant

Goroka: Manue F. Magistrate
2001: 01st October

REASONS FOR DECISION

Manue F: This is an unlawful assault case, contrary to Section 6 (1) of Summary Offences Act. Is hindering a member of the Police Force acting in execution of his duty a defence?

The defendant is a member of Police Highway Patrol based in Goroka Police Station. He was charged for unlawful assault on a single information upon three (3) victims. Two of the victims are policemen while the third is the spouse of one of the male victims. The defendant does not dispute the fact that he assaulted the victims, but did so because he alleged that he was hindered in his duty.

From the evidence adduced, the defendant does not dispute assaulting the victims in the nature of punching. I say punch, as I believe the prosecution version of assault witness were also involved in the scuffle so I do not think they took particular note of what he was doing. He contests the issue of being hindered in his lawful duty.

Prior to the assault certain events took place, and which built up leading then the defendant taking the actions for which he has been charged.

The defendant and his companions at that time were said to be on duty. While on duty, two matters were reported and came to his attention. First there was an allegation of adultery between a married woman, apparently a policewoman and an employee of Police Savings and Loans Society (PSLS). The PSLS person was in town then. Following that allegation, the husband of the policewoman, who is an ex-policeman, was wounded by the spouse. Both of these matters came to the attention of the defendant. The defendant then, followed up on the wounding report and tried to have the alleged adulterous brought together before him. He went to the extent of cancelling the flight of the PSLS personnel, who was to fly out that particular morning and with his other members and the wounded victim, went around searching for the wounding assailant. In the process of it, some members of the Police Force who were witnesses gave misleading reports of whereabouts of the wounding assailant.

The adultery complaint was dealt with at the Police Station and the parties were advised to take out civil proceedings in Court. This however was not conveyed to the defendant, as a matter of courtesy.

He and the others continued looking for the wounding suspect until in the afternoon, when they learnt that the PSLS personal had boarded the plane, which was on the tarmac outbound of Goroka. Having learnt of that, they drove out and in meeting the victims, transferred their frustration on them, resulting in the present case. The wounding suspect is still at large. The defendant did not take hindering action as they were immediately suspended 21 days from duty.

Is it lawful to assault another when the other is hindering a member of the Police Force acting in the execution of his duty? The questions of lawful defence of any crime are specifically spelled out by law. For instance, provocation is said to be a complete defence

In the offence of unlawful assault manslaughter, provocation as a defence is specifically stated under the Criminal Code Act. To my little knowledge, there is no spelled out law that says hindering amounts to a defence of assault. Having said that, then in the whole of the circumstances of this case, what then would be beneficial to the defendant in the whole of the circumstances?

The facts show that he and the others with him were frustrated while on duty because having tried to locate the wounding suspect most of the day. They did not locate her even though inquiries from fellow policemen including some of the victims and witnesses of this case were made. That did not help as misleading information were given as to whereabouts she was. It was not until afternoon that they learnt of the truth. At the same time the PSLS personal, who he wanted to be present with the wounding suspect had already boarded on a flight out bound Goroka.

The defendant has been a long serving member of the Police Force for 25 years. He has a prior conviction. In certain rare cases, the Court has a discretionary provision to exercise vested it of Section132 of the District Court Act. In exercising or invoking this provision, one of the factors mentioned in the Section must be first made out. (See Freda Nup Vs Chins Hambuga (1984) PNGLR 206) One factor which I think is available in the whole of the circumstance in this case is the extenuating circumstances under which the offence was committed. These are circumstances which lessen the seeming magnitude of guilt by a partial excuse, and may include

(a) provocation which is not sufficient to constitute the defence of provocation, and or

(b) domestic or emotional stress.

I am of the view that the defendant and others were under emotional stress, especially when they had attempted most of the day in locating their suspect and coupled with the misleading information given to them by fellow policemen. In all of all these circumstances I invoke Section 132 of District Court accordingly.

Counsel:
In Person: Complainant
Inspector Angie: Defendant