State v Niangu [2003] PGDC 31; DC446 (4 March 2003)

DC446

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1200, 1203, 1204 & 1205 OF 2002

State
Complainant

V

Leo Niangu
First Defendant

Tony Ranaipe
Second Defendant

Peterson Nawahin
Third Defendant

2003: 4th March
Madang: Eric Mosoke

FACTS (SEQUENCE OF EVENTS)

E. MOSOKE: (M): This is an Unlawful Assault case which came before me involving a Senior Police Officer who was allegedly assaulted by three unhappy policemen over alleged unfair distribution of new houses built for the Police Department at Bassett Barracks in Madang by Ausaid.

According to evidence earlier in the day of 11th June 2002, the three defendants namely, Leo Niangu, Tony Ranaipe and Peterson Nawahin and others gathered at Madang Police Station commonly known as Town Police Station to discuss issues relating to the allocation of houses at the new Police Barracks. What exactly was discussed or the length of the meeting was not disclosed at the trial. But based on the defendant's evidence, I believed the best part of the afternoon of 11.06.2002 was used to discuss the housing and related issues affecting their welfare as serving members of the Police Force in Madang.

Then at about 5.30 pm that evening, James Kupi and others who were assisting the electoral process were taking ballot boxes into the container stationed at Yomba. Police Station. As Mr Kupi spoke to the electoral officers as to where the ballot boxes were to be kept in the container he saw one of the defendants Leo Niangu who said, "yu adviser bilong housing allocation committee ah?" The defendant repeated this call for several times. Then when Mr Kupi turned his face to talk to Leo Niangu he punched him on his jaws. Again when he turned he saw Tony Ranaipe closing in from his side and punched him on the back of his shoulder blades. Tony Ranaipe also removed the beret from Mr Kupi's head. According to Mr Kupi he came under seize because there was this third men namely Peterson Nawahin who approached him from the back and kicked him on his left side of the thigh thus causing temporary muscle cramp of the left leg. Mr Kupi feeling the effects of the kick by Peterson Nawahin was unable to walk freely as he became temporarily paralysed on the left leg so he stood on one leg and raised the other to ease pain. At that moment, Senior Constable Mong intervened and helped stop the attackers from further violence against the victim. In the second incident, when the same defendants were attacking Inspector Kupi, Senior Constable Conrad Kaboanga attached to Reserve Police Unit in Madang tried to hold back Tony Ranaipe from attacking Inspector Kupi but instead Ranaipe punched Kaboanga on the jaws inflicting a broken tooth.

THE LAW

Section 6 - Summary Offences Act.

Assault (1): "In this section "applies force includes the application of heat, light, sound, electrical force, gas odour or any other substance or thing if applied to such a degree as to cause any injury or personal discomfort -

(2)

a: for the purposes of this section a person who strikes, touches, moves or otherwise applies force of any kind to the person of another directly or indirectly without his consent.

b: by any bodily act or gesture attempts to apply for of any kind to the person of another without his consent under such circumstances that the person making the attempt or threat has an actual apparent present ability to apply such force is deemed to assault that person.

(3) A person who unlawfully assaults another is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two (02) years.

THE SUBSTANTIVE ISSUE

In this case the prosecution is saying that: "On the 11/06/2002 at Yomba Police Station, Madang the defendants namely Leo Niangu, Tony Ranaipe and Peterson Nawahin did each and severally assaulted James Kupi by punching and kicking - the first two by punching and the latter by kicking."

The specific nature of assault was that Niangu punched Kupi on the left side of jaw while Ranaipe punched him on the back of his shoulder including the removal of his beret. Peterson Nawallin is alleged to have kicked the victim on back of left thigh. In the second case the charge laid is against Tony Ranaipe for assault inflicted on Conrad Kabonaga. According to evidence the defendant inflicted a punch on the victim's jaw causing the victim to loose a tooth in the attack.

On the other hand defendants have denied any wrong doing. The defence case involves mostly evidence given by each of the defendants against the assault charge. On the 9.1.2003 at the close of evidence for both sides the prosecution and defence by order of the court were to file their final submissions to court on 30.01.2002 prior to decision set for 1.30 pm 14.02.2003.

The prosecution complied with the court order but the defence failed in its bid to do like wise. A late request for further adjournment from the office of the Public Solicitor was received on the 12.02.2003. With some hesitation the court reluctantly endorsed the application for further adjournment to today's date 04.03.2003 at 1.30pm. To date I am not in receipt of any submission on behalf of the defendants by the defence counsel, Mr George Korei. I have since taken the view that there is no final submission forthcoming from the defence counsel therefore I will only rely on the defendant's evidence as the only souse of defence in their favour.

I have carefully considered the evidence and weighed out evidence for and against each of the three defendants.

Having considered the whole of the evidence before the court, I am of the opinion that the prosecution has established a case against each of the three (03) defendants for unlawful assault against James Kupi and against Tony Ranaipe for unlawful assault on Conrad Kaboanga.

In the light of till decision, I have also taken into account as factual evidence which gave rise to the commission of the offence with the following-

(1) That there was discontent among some members of the Police Force who missed out on being allocated a housing unit at the new Police Barracks.

(2) This led to a meeting held at the Madang Police Station involving the defendants and other police personnel on 11.06.2002.

(3) According to the evidence I have reason to believe the defendants consumed alcoholic drinks prior to the attack on James Kupi and Conrad Kaboanga.

(4) I accept Constable Nelson Mape's evidence as credible and competent. His evidence that he saw the three defendants holding bottles of SP Beer at the 'Works Single Quarters opposite the Yomba Police Station was also corroborated by other prosecution witnesses such as Conrad Kaboanga and James Kupi who smelt liquor front the defendant's mouth during their confrontation against the victim.

(5) This leads me to conclude that the attack on James Kupi was pre planned and executed to let off bad temperament held against the victim.

(6) The three defendants have stated that they have served many years in Madang but were over looked when allocation of new houses were made.

(7) There is no doubt this is a genuine concern but when fitted against the law there is no compromise under any circumstances.

(8) As members of the Police Force you are expected to display good conduct and well disciplined in all aspects of your actions on and off duty.

To simply say James Kupi did not give you house so you have the right to attack him leaves you all vulnerable to the full force of the law. Let me remind you once again, there is no exception in law. We as members of law enforcing agencies, the Courts and the Police are of no exception. What ever we do we are all accountable and answerable for our own actions.

I have carefully considered and weighed up each defendants evidence in every circumstances, but not one of them was able to convince the court that his actions was lawful or justifiable in any way. The offence of unlawful assault comes under a statute namely the Summary Offences Act and the Criminal Code Act. What the court would have been required to do is to determine if there was any defence to the credit of the defendants as far as the offence of unlawful assault is concerned. The defence counsel has failed to assist the court in determining if the defendants have any defence at all in the offence changed. My general observation is that the idea of provocation is not unknown in PNG Society quite often people give reason for doing things.

For example, in tills case, when one of the defendant's Leo Niangu approached James Kupi, he asked or rather demanded in the words to this effect."Yu adviser bilong housing allocation ah?" The answer he got from James Kupi was "Yu askim wrong man yah". Which I believed James Kupi meant he was not a party to the allocation committee. It appears to me the words used by James Kupi, "Yu askim wrong man yah"was used as a stepping stone for the defendant Leo Niangu to attack the victim. His actions were re-enforced by his co-defendants Tony Ranaipe and Peterson Nawallin with punching and kicking of the victim. The idea of provocation is well established and recognised in Papua New Guinea under the Constitution and other statutes without offending the Constitutional provisions under Schedule 2.3 and 2.4 respectively.

In my humble opinion, the words spoken by James Kupi, "Yu askim wrong man yah." was not offensive and cannot give rise to the defence of provocation.

I certainly do not think these words alone would be sufficient to provoke the defendants into attacking James Kupi as they did. There is no defence of provocation available to the defendants in this case. I have considered custodial sentence as being appropriate for this case, but other factors play in your favour. I have taken into account that all of you are:

(1) First time offenders;

(2) That the attack was kept to minimal. and not vicious or of serious nature.

(3) As long time residents of Madang Police Unit missing out on housing is certainly very frustrating and unbearable as shown by tempers flared in this case.

Therefore I consider Court Fine as fitting and appropriate in the circumstances of this case. Accordingly, I find Leo Niangu, Tony Ranaipe guilty of unlawful assault against James Kupi. And I also find Tony Ranaipe guilty of unlawful assault against Conrad Kabonaga.

Orders accordingly.

Sgt. Suamani: Complainant
Mr George Korei: Defendant