State v Waim [2003] PGDC 39; DC464 (30 June 2003)

DC464

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 89 OF 2003

The State
Complainant

V

Paul Waim
Defendant

Kwikila: Bingtau - D.C.M.
2003: 12th, 22nd May, 19th, 24^th, 30th June.

Criminal Law –
Insulting Words whereby breach of Peace was likely to take place 7(b) S.O Act.
Whether asking for" Blue Moyie" C.D amounts to insulting words and creates an offence under S. 7(b) S.O. Act.
Whether in every Police case the informant must give evidence
Court fine is appropriate for first offender
Compensation as a punishment considered
Recommendation for demotion in rank - $57(2)(b) Police Force Act chapter No. 65 PNGR Laws.

CASES CITED:
Cornish v Like [1978] PNGLR 56
The State v Rape [1976] PNGLR 96
The State v Abel Airi [2000] N2007
Ure Hane v The State [1984] PNGLR 105
The State v Peter Kose Wena [1993] N1184

Counsel
Chief Sergeant Harry Mayoho for the State
Defendant Senior Constable Paul Waim In Person.

JUDGEMENT

INTRODUCTION:

This is a Summary Offences case brought by way of information before this Court by the informant Inspector Vincent Pokas of the Kwikila Police Station on the 12/05/03 alleging that on the 7/5/03 at Border Street in Kwikila town, the defendant Paul Waim of Kerowagi village, Kundiawa Chimbu Province did use insulting words namely "BLUE MOVIE" towards Mrs. Otto Silona, whereby a breach of peace was likely to take place. Thereby contravening to Section 7(b) of the Summary Offences Act.

Upon plea on the 12/5/03, the defendant pleaded not guilty to the charge. The defendant's defence was that he requested Mrs. Otto Silona for "AO" Video C.Ds and not" Blue Movie" video C.Ds as alleged in the information. Then trial was conducted.

FACTS

Briefly the facts as I found from the State witness namely Mrs. Jill Silona, Mrs. Julie Houlo, Mr. Nicky Gorua and defendant Mr. Paul Waim's own evidence are that on the 7/05/03 the defendant had gone to the complainant Mrs. Jill Silona and her husband's residence. Defendant had asked complainant's son Junior Silona and complainant for C.D movie cassettes to borrow from them and watch. Junior Silona had gone into their house and took a C.D cassette out and gave to defendant. Defendant saw the cassette and returned it saying, he watched it already. Then Mrs. Jill Silona send Junior Silona into the house to get the whole bilum of C.D cassettes out from the house.

Junior Silona went into the house took the bilum of C.D cassettes outside. Mrs. Jill Silona took out three C.D cassettes for Jacky Chan and gave them to the defendant. The defendant took the three C.D cassettes and put them in his waste bag. Then the defendant had asked Mrs. Jill Silona in a normal voice, do you have Blue Movie C.D cassettes too? Defendant had turned around quickly and went to Mr. Nicky Gorua's residence. About five to six minutes later Mrs. Jill Silona send her daughter over to the defendant to come over to her house so that she will ask defendant properly why he asked for Blue Movie C.D cassettes, after Mrs. Julie Houlo explained to her what kind of pictures are found in the Blue Movie C.D cassettes because Mrs. Jill Silona had not watched a Blue Movie and does not know. When the defendant came over to the complainant's house, she argued with the defendant. The defendant denied asking complainant for" Blue Movie" C.D cassettes but for" A.D" cassette. Then the matter was reported to the Kwikila Police Station Commander Inspector Vincent Pokas who charged the defendant under Section 7(b) Summary Offences Act and brought before the Court on the 12/05/03.

ISSUES:

The only fact in issue posed by this case is whether the defendant asked Mrs. Jill Silona for "Blue Movie" cassette or "AO Movie"?

LAW:

The statute laws applicable to resolve the issue raised by this case are:-

1. Section 7(b) Summary Offences Act:

"7 Provoking a breach of the place.

A person who -

b) uses threatening, abusive or insulting words 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.

Penalty: A fine not exceeding K300.00 or imprisonment for a term not exceeding one year"

2. Section 2 Summary Offences Act:

"2 Burden of proof of lawful excuse.

Where under the provision of this Act or any act, if done without lawful excuse or lawful cause, is an offence, the burden of proof that, the act was done with lawful excuse or lawful cause, as the case may be, is on the person charged with the offence".

3. Section 2(1)(2) and 6(1)(a)(b)(c)(d) Criminal Law (Compensation) Act 1991.

a) "2. Compensation as Punishment

(1) Not withstanding that payment of compensation for an offence, a Court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When a Court is considering the punishment or punishment to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.

(b) " 6.Terms of Compensation Orders

1.A compensation order shall-

2. Specify the nature and the amount of the compensation to be paid, and

(b) Specify a default penalty in accordance with schedule, and

(c) Specify the person or group of persons to when the compensation is to be paid, and

(d) Specify the date by which and manner in which the compensation is to be paid."

4. Section 2(1)(a) and 3(a) Defendant Act chapter No. 293 PNGR Laws.

(a) "2. DEFINITION OF DEFAMATORY MATTER.

(1) An introduction concerning a person, or a member of his family, whether living or dead, by which-

(a) the reputation of that person is likely to be injured is a defamatory imputation."

(b) "3. DEFINITION OF DEFAMATION.

A person who –

(a) by spoken words or audible sounds, publishes a defamatory imputation concerning a person defames that person within the meaning of this Act."

The case authorities applicable to resolve the issue raised by this case are:-

1.Cornish -v- Like [1978] PNGLR 56, is one of the authorities on the burden of proof borne by the Prosecution in a criminal case. Raise Deputy C.J as he then was said at page 5 "If Magistrate in trying a Criminal case, will apply the Criminal anus of proof that a proof beyond reasonable doubt.

If the standard of prosecution of a case is poor and the case does not come up to the mark, then if not satisfied beyond reasonable doubt the Magistrate will dismiss the charge".

2. Rv Dodd [1971-72] PNGLR 255 and The State -v- Rape [1976] PNGLR 96 are two of the authorities on the Courts duty to consider the evidences at the end of the State's case in a Criminal case, and decide whether defendant has a case to answer or not.

It was held in these two authorities and others that:- " A defendant should not be required to make any defence unless the prosecution has made out a case against him. Where there is no evidence to prove an essential element of the alleged offence or where the evidence adduced by the prosecution has been so discredited as a result of cross -examination or is so clearly unreliable that no reasonable tribunal could safely convict on it, the Court should dismiss the charge".

3. The State –v- Abel Airi [2000] N2007, is one of the authorities on the discretion of a judge exercised in sentencing a defendant in a Criminal case. It was held that:- " The exercising of a sentencing judge or Courts discretion is not a matter of mathematics, but rather on application of that discretion judicially having regard to the particular circumstances of the case, noting that a case has to be determined on it's own facts. Exercising that discretion may well defer from judge to judge and that, they may well be differences depending on the nature and circumstances in which the offence is committed".

4. The State -v- Peter Kose Wena [1993] N1184, is one of the authorities on the Court's duty to consider the terms of the Criminal Law (Compensation) Act 1991. It was held that:-

1. The terms of the Criminal Law (Compensation) Act 1991 must be considered in every sentence by the National and the District Courts.

2. The Court must consider the terms of the Criminal Law (Compensation) Act 1991 in two stages namely whether compensation order should be made in the circumstances of the case, and if so, the actual order in terms of the amount, form, method, period in which to pay, the persons to whom compensation is to be paid and specify a default penalty in accordance with schedule 1 of the Act.

APPLICATION OF THE LAW TO THE ISSUE & CONCLUSION:

The only issue posed in this case as already stated relates to the defendant's denial of using the alleged insulting word" Blue Movie" against the complainant Mrs. Jill Silona.

The Law in this jurisdiction is very clear that in any Criminal cases, the State always bears the burden of proving all elements of a charge beyond reasonable doubt for the Court to find a defendant guilty of the offence. One of the authorities on that point is the case of Cornish -v- Like Supra, which states that if the State does not prove it's case beyond reasonable doubt then the Court has to dismiss the charge.

In this case, the State had to prove the following elements for the charge under Section 7(b) of the Summary Offences Act. They are namely that; 1. On the 7.05.03 at Border Street in Kwikila Town, defendant used insulting words at Mrs. Jill Silona, 2. A breach of peace was likely to take place from that insulting word.

1). The State's Evidence.

In an attempt to prove the above said elements of the alleged offence, the State called three witnesses.

The first witness was Mrs. Jill Silona the complainant who gave verbal sworn evidence in chief that on the 7.05.03 at Border Street, in Kwikila Station, she was sitting in her residence with her children and her friend Mrs. Julie Houlo. Then came Paul Waim, the defendant, who asked her son, little Junior Silona for C.D cassettes. She followed her son to the defendant. Defendant asked for C.D cassette. She send little Junior Silona into their house to take a C.D cassette from their house. Then little Junior Silona brought a C.D cassette out from the house and gave it to the defendant. Defendant saw the C.D cassette and said he viewed it already. So she send little Silona to take the whole bilum of C.D cassettes from the house. Little Silona went to their house and took the bilum of C.D cassettes out from the house to her. She gave 3 C.D cassettes for Jackie Chan to the defendant. Defendant put them in his waste bag.

Defendant then asked"Do you have any Blue Movie" cassettes?' Defendant then quickly turned around and went away to a neighbour Mr. Nicky Gorua's house. She heard defendant asked for Blue Movie cassettes and she was not happy because her family do not have and watch Blue Movie C.D cassettes. She then send her daughter to tell the defendant to come back to her to explain why he asked her for Blue Movie C.D cassettes. The girl asked defendant to come to her. The defendant came to her. She asked defendant why he asked her for Blue Movie C.D cassettes. The defendant denied asking for Blue Movie C.D cassettes, so the two of them ended up at the Police Station, where the matter was reported to the Police Station Commander who eventually was charged for the offence under Section 7(b) of the Summary Offences Act.

The witness was examined in chief as to her knowledge of Blue Movie C.D cassettes and what sort of pictures are contained in a Blue Movie. The witness replied that she had not seen a Blue Movie nor was she told by anyone what a Blue Movie is and she and her family do not have and watch a Blue Movie C.D cassette.

The Defendant then cross-examined the witness. Defendant's questions related to witnesses failure to response to the alleged insulting words immediately, and his defence that he asked her for" AO " Movie C.D and not for Blue Movie C.D cassettes. The witness replied that, she did not respond immediately to the defendant's alleged insulting words because defendant had moved away from her quickly after asking for Blue Movie and too she took time to pack the C.D cassettes into the bilum and put them back in the house. In response to the defendant's defence put to her, she replied that, defendant asked her for" Blue Movie" C.D cassettes and not for" AO " C.D cassettes

The Court examined her on the where about of Mrs. Julie Silas Houlo and the volume of words used by defendant when asking her for Blue Movie C.D cassettes. The witness responded that, Mrs. Julie Houlo Silas with her children were sitting close to where the defendant and herself stood and talked about the C.D cassettes and when the defendant asked for Blue Movie C.D cassettes. Further she said defendant used normal loud and clear voice to ask her for Blue Movie C.D cassette.

The State then called second witness namely Mrs. Julie Silas Houlo, who gave verbal sworn evidence, that, on the 7.05.03 she was with Jill Silona and her children in their residence along the Border Street in Kwikila Town. Defendant then came along asked for Junior Silona, Mrs. Jill Silona's small boy, when Junior Silona went to the defendant, Mrs. Jill Silona also followed to the defendant. Defendant stood at the step of their house, and asked for C.D cassettes. Junior Silona went into their house took a C.D cassette and gave to defendant. Defendant saw the C.D cassette and said he had watched it already. Mrs. Jill Silona then send Junior Silona back into the house to get the whole bilum of cassettes out. Junior Silona went into the house and took out the bilum of C.D cassettes to the defendant. The defendant viewed the cassettes and selected three and put them in his waste bag. Then defendant asked Mrs. Jill Silona whether she has any Blue Movie C.D cassettes. She heard it and called out to the defendant as well as Mrs. Jill Silona. Defendant then quickly moved out and went into the neighbour Mr. Nicky Gorua's residence. Jill Silon's two sons told Jill to report the matter to Police because defendant had asked her for Blur Movie when their father Mr. Otto Silona was away from the house, attending to Workshop in Port Moresby. So the matter was reported to the Kwikila Police Station Commander Inspector Vincent Pokas.

This second witness was examined in chief on what Blue Movie means to her, what sort of pictures are shown in it, what " AO " movie means to her and what sort of pictures are shown in them and how many persons are shown in them and how many persons were present at that time of the alleged incident. The witness responded that, while in Port Moresby she heard people sat that "Blue Movie" is a kind of pictures that involves sex and only adults see or watch that kind of pictures because they are bad pictures. On the "AO" movie, the witness said, it is a kind of movie which contain bad pictures in it and not good for children to watch. Furthermore on 7/05/03 when she heard the defendant asked Mrs. Jill Silona for Blue Movie C.D cassette, she called out to the defendant in anger because she knew he was asking for a bad movie.

On that day there were many people present and a big fight nearly broke out with the defendant over the insulting words he used.

The defendant cross-examined the witness on his defence that he asked Mrs. Jill Otto Silona for "AO" movie cassette and not "Blue Movie" CD cassette. The witness responded that she heard defendant asked Mrs. Jill Silona for Blue Movie C.D cassette and not"AO" movie pictures asked for by the defendant where bad pictures, so she told Jill Silona and they argued with the defendant. Furthermore Blue Movie and "AO" movie pictures contain similar pictures of sex scenes.

Witness was re-examined as to what she heard Mrs. Jill Silona say, whether "AO" movie or "Blue Movie" when she argued with the defendant. Witness responded that Mrs. Jill Silona said "Blue Movie" and argued with the defendant.

Witness was examined on how far she sat from Mrs. Jill Silona and defendant when she heard the said insulting words. The volume of voice used by the defendant when asking for Blue Movie C.D cassette and how far the neighbour Nicky Gorua was. The witness responded that she sat about 5 - 6 metres away from Mrs. Jill Silona and the defendant and heard the defendant ask for Blue Movie C.D cassette. The voice defendant used was loud and clear for her to hear. But for the neighbour Mr. Nicky Gorua, he was far from where the defendant and Mrs. Jill Silona stood and defendant asked for Blue Movie C.D cassette.

The State called third witness Mr. Nicky Gorua who also gave verbal sworn evidence that on the 7.05.03 he was in his residence at the Border Street in Kwikila Town. He stood three metres away from Mrs. Jill Silona and the defendant. He could not hear what defendant say to Mrs. Jill Silona. He walked across to his residence and sat on the form. Defendant walked over to his residence after he finished with Mrs. Jill Silona. Some time Mrs. Jill Silona burst out against the defendant saying that the defendant asked her for "Blue Movie". He observed the defendant that he felt guilty. Then told Mrs. Jill Silona that he will charge her for accusing him for asking her for Blue Movie just to let Mrs. Silona to lower her voice and forget the incident because many people were gathering around by that time.

The witness was examined in chief on the reaction from Mrs. Jill Silona towards the defendant. The witness responded that, the complainant Mrs. Jill Silona burst loudly that defendant had asked her for Blue Movie. She approved very angry and upset saying that people will think that herself her husband have Blue Movie C.D cassettes and watch them. Besides that her husband was away in Port Moresby attending a Workshop.

Witness was cross-examined by the defendant on how long it took for Mrs. Jill Silona to come and argue with him and whether he heard him reply to Mrs. Silona that he had asked for "AO" movie and not "Blue Movie". The witness replied that, he had no watch on that time so he estimate would be that it took Mrs. Silona to follow defendant to his resident after 5 - 6 minutes time and argued. As to defendant's reply to Mrs. Silona's witness says that he heard defendant told Mrs. Silona that he asked her for "AO" movie and not Blue Movie, why she is accusing him falsely.

Witness was not re-examined. The Court examined him on his knowledge of "Blue Movie" and"AO" movies. The witness said Blue Movies contains sexual violence pictures involving prostitutes and it is against the law for one to possess such pictures or view it. For "AO""movies, he says the pictures involves high violence and a bit of sexual scenes. Then State closed it's case.

2). Whether Defendant has case to answer.

The Court then considered the State's case to decide whether the defendant has case to answer. The case authority to assist in deciding whether defendant has case to answer and be called upon to give his evidence and call witness are the cases of R -v- Dodd Supra and The State -v- Rape Supra which were held that at the end of a State's case in a Criminal case, the Court has duty to consider the State's case and decide whether defendant has case to answer to the charge or not.

The Court in order to decide on whether the defendant has case to answer to charge considered and examined the State witnesses Mrs. Jill Silona, Mr. Nicky Gorua and Mrs. Julie Houlo's sworn evidences. The Court found that Mrs. Jill Silona and Mrs. Julie Silas's sworn evidence show that they gave direct evidence of hearing the defendant asking for Blue Movie C.D cassette on 7.05.03 and not for "AO" movie C.D cassette as suggested to them by defendant in cross-examination. The second witness Nicky Gorua's evidence gives circumstantial evidence of the observation he made on the defendant when accused by Mrs. Silona for asking her about Blue Movie and the argument that followed after 5 - 6 minutes when the defendant entered his residence.

There is no dispute from the defendant that the word "Blue Movie" is an insulting word and that a breach of peace was likely to be provoked by it. Defendant only disputes that he did not say "Blue Movie" but "AO".

I have observed the three State witnesses in the witness box and found them to be true and credible witnesses. They told the Court the truth as they saw the defendant did and hear the defendant say on the 7.05.03. Their evidence were not discredited or destroyed in cross-examination especially the evidence from Mrs. Jill Silona and Julie Houlo. I therefore found that the State established the elements of the offence under Section 7(b) Summary Offences Act namely that; 1. On the 7.05.03 defendant used insulting words namely "Blue Movie" to Mrs. Jill Silona and; 2. A breach of peace was likely to take place from the use of those insulting words. Then it follows that defendant has case to answer to the charge under Section 7(b) of the Summary Offences Act.

3) The Defendant's Case.

After the Court announced that the defendant has case to answer to the charge under Section 7(b) of the Summary Offences Act, the defendant elected to give his evidence and because he has no witness.

The defendant gave written sworn evidence that on the 7.05.03 he went to Mr. Otto Silona's residence along Border Street in Kwikila Town, after he visited Mr. Satu's house. He asked the children where Mr. Otto Silona, their father was. They told him he had gone to Moresby. He asked to see their mother. The children called their mother Mrs. Jill Silona who came over to meet him. He asked Mrs. Silona if he could borrow some of their C.D movie cassettes. Mrs. Silona gave him three cassettes. He took them then asked Mrs. Silona to send one of his sons to his house so that he will give some of their C.D for them to watch. Then he asked politely and friendly whether she has any "AO" C.D movie cassettes. Then Mrs. Silona responded politely that no they do not have any "AO" movie cassettes. Then he went over to Mr. Nicky Gorua's residence, borrowed his medicine and dressed sore, a boil on his left leg. After 6 - 7 minutes Mrs. Silona's daughter came asked him to go back and see her. When he approached Mrs. Silona, she accused her of "Blue Movie". It surprised him because he had asked her for "AO" movies and not "Blue Movie". He argued with Mrs. Silona, threw back her three C.D movie cassettes, he went first to the Police Station and explained to the Police Station Commander (PSC) that he asked Mrs. Silona for "AO" movie C.D's and she accused him of asking her for "Blue Movie" C.D. The PSC acting on Mrs. Silona's complaint charged him of the offence under Section 7(b) of the Summary Offences Act.

The defendant was cross-examined by the Prosecutor regarding the definition of A.O and the pictures normally shown in the A.O cassettes. The argument that happened between him and Mrs. Silona. The State's witness evidence was put to the defendant.

The meaning of Blue Movie and what kind of pictures are shown in a Blue Movie. The defendant replied and told the Court that A.O. stands for Adults Only. "AO" movies contains pictures of violence and other pictures adults want to watch. Be had asked Mrs. Jill Silona for "AO" movies but he was surprised to hear her accused him of asking her for "Blue Movie" after 6 - 7 minutes later so they argued and he threw her 3 C.D movies back to her. Be was falsely accused by Mrs. Jill Silona for asking her for "Blue Movie" C.D when he had asked her for "AO" movie C.D.

Many people were attracted to the scene because of the argument between him and Mrs. Silona. Defendant refused to answer question 10 relating to what kind of pictures are shown in "Blue Movie" because he had not asked for "Blue Movie" C.D's. Defendant again refused to answer question 11 relating to whether Blue Movie was suitable for children or not for the same reason that he did not ask for Blue Movie C.D. Court examined the defendant on how far he was from Mrs. Silona when the two talk, the volume of voice used, the presence of Mrs. Julie Silas, the presence of Mr. Nicky Gorua and whether he had borrowed AO movie cassettes from Mrs. Silona on previous occasions. The defendant responded that he stood very close to Mrs. Silona when they talked for C.D movie cassettes. When he asked Mrs. Silona for "AO Movie" C.D, he talked in a normal loud and clear voice. At that time he had not seen Mrs. Julie Boulo at Mr and Mrs. Silona's residence but she could have been amongst the group of people who were playing cards 6 - 7 metres away from Mr. Silona's residence. He did not hear Mrs. Julie Boulo callout to her, after he asked Mrs. Silona for "AO" movie C.D. That time Mr. Nicky Gorua was at 6 - 7 metres away in his residence. Before the 7/05/03, on the prior occasions he had gone and borrowed some A.O movie C.D's from Mr. Otto Silona in the presence of Mrs. Jill Silona but they were not really obscene. The defendant closed his case because he had no witness to call.

4) Final Submissions.

After the close of defendant's case, the Court asked for final submissions. The Police Prosecutor Chief Sergeant Harry Mavoho for the State in his written submissions invited the Court to believe the State witnesses Mrs. Jill Silona and Mrs. Julie Houlo and convict the defendant for the charge he was charged for on the basis that their evidence are corroborated. It is clear from their evidence that on 7.05.03 at Bordor Street at Kwikila Town, the defendant had used the word "Blue Movie" when asking for Movie C.D's from Mrs. Jill Silona. That word is an insulting word within the meaning of Section 7(b) of the Summary Offences Act. Therefore the word had provoked arguments between Mrs. Jill Silona and the defendant.

The defendant's evidence is uncorroborated therefore should not be accepted. Defendant was cross-examined by State on the "AO" and "Blue Movie" regarding it's meaning and what sort of pictures are contained in them. But defendant had refused to answer the questions. That shows that defendant's evidence is unreliable and could not be believed by the Court so the Court should find the State had proven it's case beyond reasonable doubt and find the defendant guilty of the charge and consider compensation as a punishment apart from the punishment it may impose.

On the other hand the Defendant invited the Court to find there is no case against him on the alleged charge and dismiss the charge. The reasons being that;

1. The Prosecution's evidence from the three State witnesses does not corroborate each other.

2. The Police informant Inspector Vincent Pokas had failed to come and give evidence to the Court of his investigation, as is the normal Police procedure, to establish each element of the charge.

3. First State witness Mrs. Jill Silona who is the complainant denied that the defendant had asked her politely for A.O Movie cassettes and she had politely said no but surprised to be accused of asking for "Blue Movie" seven minutes later. The complainant in examination in chief said she does not know what a "Blue Movie" is and what type of pictures shown in it. Therefore it is clear that within seven minutes someone had misinterpreted his request for "AO Movie" to "Blue Movie". 4. In examination in chief of the complainant Mrs. Jill Silona the State failed to justify the exact word that he used towards the complainant between the two words "AO" and "Blue Movie"; and 5. The three State witnesses Jill Silona, Julie Houlo and Nicky Gorua's evidence do not corroborate each other regarding the meaning of Blue Movie and the type of pictures contained in "Blue Movies".

5. Conclusion.

The Court then examined all the evidences adduced from the State and the defendant, to arrive at the final verdict. The case authorities of assistance in deciding the final verdict in any Criminal case in this jurisdiction are the cases of John Jaminan -v- The State (No: 2) [1983] PNGLR 318, Cornish -v- Like Supra and many others, the National and Supreme Courts held that, a Magistrate or Judge in trying a Criminal Case, will apply the Criminal onus of proof, that is proof beyond reasonable doubt. If the standard of a prosecution of a case is poor and the Court is not satisfied beyond reasonable doubt then, the case be dismissed.

The Court made the following findings from the State and defence evidences:-

1. That on the 7/05/03 prior to the defendant going to Mrs. Jill Silona's residence, there had been no arguments or ill feelings between the defendant and Mrs. Jill Silona or their families or even Mrs. Julie Houlo and the defendant or their families. Mrs. Jill Silona and defendant talked politely and defendant borrowed 3 Jackie Chan movie C.D's from Mrs. 'Silona. After that, the words used by the defendant to request for other movie C.D differs. Mrs. Jill Silona and Mrs. Julie Houlo say, in a loud clear voice heard defendant asked for "Blue Movie" C.D on the other hand defendant say, he asked politely in a loud clear voice for "AO Movie" C.D. At that time Mrs. Julie Houlo was seated 5 - 6 metres away from Mrs. Silona and defendant. It appears that Mrs. Jill Silona does not know what a "Blue Movie" is and Mrs. Julie Houlo says she explained to her that "Blue Movie" refers to movies which contains pictures of sexual scenes and are generally bad pictures. Further evidence from Jill and Julie show that as soon as defendant asked for "Blue Movie" C.D he quickly turned and went to Nicky Gorua's residence, without responding to Julie's call to Jill that he is asking for bad movies, ask him why he is asking her for bad movies. There is suggestion by the defendant that it took 5 - 6 minutes for Jill to argue means that Julie had fabricated and influenced Jill to interpretes "AO Movie" C.D to "Blue Movie" C.D. However the Court reject that suggestion on the grounds that, there is no evidence that Jill and Julie are lying and have personal grudges with defendant so they fabricated stories. A reasonable Papua New Guinean women like Jill or Julie could not have fabricated stories to falsely accuses and defame a good Policeman like SIC Paul Waim. Policemen are some of the highly respected member of the community and so the Court does not accept that Jill and Julie falsely accused defendant. Their evidences are corroborated as apposed to the defendant's.

Looking at the defendant's evidence that he asked in a loud clear voice, politely for "AO Movie" and not "Blue Movie", the Court asked itself how could Jill and Julie not hear clearly "AO Movie". Are they deaf or were they very far from him? The Court found that there is no evidence to suggest Jill and Julie were far away or are deaf so could not hear properly. Therefore the Court accepted the State's evidence that defendant asked Jill Silona for "Blue Movie" C.D and not for "AO Movie" on the 7/05/03.

2. That the word "Blue Movie" used by the defendant to ask Mrs. Jill Silona whether she has any "Blue Movie" C.D amounted to insulting word. To clarify more on the said word, the Court sought and took Judicial Notice of the definition of the word "Blue" in Oxford learners Dictionary and Section 25(1)(a) of the Summary Offences Act. In the Oxford Dictionary, the word "Blue" among many definitions given, one of them says, it also means indecent, pornographic, a blue film or movie joke. Under Section 25 A (1)(a), it is offence for one to have in their possessions articles or films that are blasphemous or indecent or grossly offends or grossly offend against accepted standard of decency is guilty of an offence. Furthermore the answers to the Prosecutor's examination in chief on State's witnesses Nicky Gorua and Julie Houlo show that "Blue Movie" means, the movie contains pictures of sexual scenes, sexual acts or generally contain bad, obscene and indecent pictures and is against the law. However the defendant on cross- examination by Prosecutor refused to answer what it means to him as "Blue Movie" and what sort of pictures are seen in "Blue Movie" on the grounds that he had not asked Mrs. Jill Silona for "AO Movie" and not "Blue Movie". From all those evidence, the Court found the word "Blue Movie" was insulting to Mrs. Jill Silona, when used by the defendant a Policemen.

To Jill Silona it could mean that, the Policeman is trying to find out whether she and her husband keep and watch "Blue Movie" so that he could charge them if he gets one from her, or it could mean that, other people like Julie Houlo who was there will think that Jill and her husband Mr. Silona are evil couples who watch "Blue Movies", therefore defendant is asking for it. It also amounted to defamation of Mr. and Mrs. Silona. Therefore after 5 - 6 minutes when Julie Houlo explained to her the meaning and contents of "Blue Movie" she burst out and got cross with the defendant.

3. That it was not necessary for the informant Inspector Vincent Pokas to come and give evidence on his investigation. It is a procedure that, the discretion to call a State witness rests on the Police Prosecutor. If he sees that a Police informant needs to be called, he will call him or her. Usually the Police informants are called to testify against a defendant if during the arrest, he or she voluntary admitted committing an offence but when before the Court pleaded not guilty. The Court therefore rejects the defendant's suggestion that, the Police informant failed to come and give evidence to prove every element of the offence under Section 7(b) Summary Offences Act, therefore this case be dismissed.

Finally for all the findings and reasons given above the Court found the State had established all the elements and proven beyond reasonable doubt the offence under Section 7(b) of the Summary Offences Act. Therefore the defendant was found guilty and convicted of the offence.

BEFORE SENTENCE:

Before sentence Prosecutor reported the defendant's antecedent and prior conviction report. The report was that defendant was a married man with 6 children, comes from Kerowagi in the
Chimbu Province, employed by the Police Department and earns K102.00 nett Salary per fortnight. He has no prior conviction report.

The complainant Mrs. Jill Silona was invited by the Court to make submission on whether she wants compensation be ordered in this case or not. Mrs. Jill Silona submitted that herself and husband were defamed by the defendant, therefore asked for compensation of K500.00 because defendant did not admit the charge at the first place but dragged her and witness to give evidence in Court as though they were K2.00 women.

Defendant was than invited to make his submission in allocutus. Before sentence defendant submitted that since becoming a Policeman up to now, there have been no conviction entered against him. As a Policeman he would not have asked for "Blue Movie" but does not know how the Court found him guilty so asked for the Court to consider him as a first time offender. Court asked defendant can he indicate how much Court fine and compensation he can afford. Defendant replied that he leaves it up to the Court to decide and he will look for means to pay up.

SENTENCE:

The Court then went on to determine the appropriate sentence. A case of assistance on this point is the case of The State -v- Abel Airi Supra, where the National Court held that, the discretion of a Sentencing Judge is not a matter of mathematical calculation but exercise of discretion judicially depending on the nature and circumstance in which the offence was committed. In this case Mr. Paul Waim, the Aggraveting factors against you are that, you have pleaded not guilty to the charge and caused the Court and State to conduct trial. The Mitigating factors in your favour are:-

1. You are a first offender;

2. You are married with 6 children;

3. You are employed by Police Department earn a net salary of K102.00 per forthnight. Considering these two factors and balancing them, the Court considers this to be the appropriate sentence. You are convicted and fined K200.00 payable by Friday 4th July, 2003. In default be imprisoned for four months in hard labour at the Bomana Corrective Institution. Apart from the above sentence, the Court considers that, the insulting words you used against Mrs. Jill Silona amounted to defamation not only to her but to her husband Mr. Otto Silona who is a Senior Public Servant with the Rigo District Administration, within the definition of defamation under Section 2 and 3 of the Defamation Act.

Therefore under Section 2(1)(2) and 6(1)(a)(b)(c)(d) of the Criminal Law (Compensation) Act 1991 and adopting the authority in The State -v- Peter Kose Wena Supra, the Court considers to award compensation as a punishment against you. The appropriate compensation, the Court considers is that you are to pay K300.00 cash compensation within one month in default be imprisoned for one month in light labour at the Bomana Corrective Institution.

Furthermore you are regular member of the Police Force so the Court will decide on the recommendation provided under Section 57(2)(a)(b)(c) of the Force Act chapter No: 65 of the PNGR Laws. The said Section provides:-

"57. Member charged with Criminal offence.

(2) If the member of the Regular Constabulary branch concerned is convicted of the charge by a Court of competent jurisdiction, the Court shall, in addition to any punishment that it may otherwise impose, recommend that the member be or not be-

(a) dismissed from the force or

(b) reduced to a specified lower rank or

(c) reduced in Salary

(d) as the Court thinks appropriate".

The Court considers that you are a first time offender, but you are a member of the disciplined force, and what you did in this case implies to the Court that you have shown that people can watch "Blue Movie" no matter what the law we in force says therefore as a retribution against you and deterrence against other Policemen and women, Court considers it appropriate to make the following recommendation:-

Under Section 57(2)(b) of the Police Force Act the Court recommends to the Police Commissioner to demote you from Senior Constable down to Constable.

The Court therefore made Orders accordingly.

Chief Sergeant Harry Mavoho: Complainant
Sic Paul Waim In Person: Defendant