Wimb v Bromely [2003] PGDC 7; DC86 (4 November 2003)

DC86

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 104 OF 2003

BETWEEN

NOKI WIMB
Complainant

AND

SECURITY MANAGER BROMELY & MANTON

Defendant

Mount Hagen
S W Seneka
11 September 2003
4 November 2003

CIVIL CASE - Allegation of Assault - Framed up to escape, Police charged for stealing - Police statement and Medical Report hearsay

Case Cited

Wama Kints v Senior Constable Pius Nukundi N2113

Subraqmaniam v PP [1956] PNGLR 965

References
Evidence Act. Ch.48 Section 37

Counsel
Complainant, In Person
Defendant, In Person

SENEKA: Complainant is claiming that on the 04th February, 2003 defendant Security assaulted him on allegation of stealing. Resulted in two (2) of his teeth were broken. Complainant claim K4, 000.00. Parties relied on their affidavits filed one (1) for complainant while defendant had four (4).

The evidence are as follows:-

Complainant Noki Wimb in his affidavit said on 04th February, 2003 he went to Bromely and Manton store for shopping. Got a packet of Disprin and waited at the till while operator was serving another with Bank Card. Jackson Simon a Security assaulted him four times claiming complainant had stolen.

He was taken to Office for questioning and later to Police Station. Complainant explain to Constable Adan Simon that he did not steal. He was released six (6) days later. Complainant lost two (2) teeth and have problem with his eyes speech and cannot eat properly. Complainant claim K2, 000.00 for each of his teeth (K4, 000.00) for two teeth and by custom should be more (money and pigs).

Defendant filed four (4) affidavits Paul Mackay Security Manager for Collins and Leahy, Jackson Simon and Paul Ray both security guards of Collins and Leahy Company. Paul Mackay's affidavit has Paul Ray and Jackson Simon's affidavit as attachment "A" and "B" and he believed Complainant's claim is a framed up claim. He is putting this claim to escape his criminal responsibility. The affidavit of the two (2) said that on 04.02.03 while on normal duties complainant was searched and in person, they found (2) Disprin cards hidden at the back of his shirt. Complainant admitted stealing and was escorted to Police Station. At Police Station, he admitted stealing and was charged and was waiting for his court case.

That being the evidence there are no supportive evidence for complainant. Complainant said he was assaulted by Jackson Simon. There are no supportive evidence to show why complainant was assault and for what reason. Wama Kints v Sc. Pius Nukundi 2001 N2113. It was only complainant's claim.

Defendant's two witnesses said they found two Disprin cards hidden at the back covered by his shirt and he admitted and was taken to Police station. There he admit and was charged for stealing.

There was no mention of struggle and scuffle but he admitted taking the two (2) Disprin cards and had no money to pay for them. Complainant claim he had gone to Hospital and there was a Medical Report on it. Though he made reference to it none was attached to his affidavit.

Two (2) reports were attached to Pauls's Mackay's affidavit of Police and Doctors report. Both reports were prepared by person who have not filed their affidavit to say the reports were prepared by their affidavits so say the reports were prepared by them and the contents are true. The report therefore out hearsay and inadmissible Subramaniona v PP. [1950] PNGWLR 965. As to Doctor's Report see 37 (1) of Evidence Act Ch. 48 is the relevant Provision is in this form, "section 37 (1)".

"An affidavit made by a medical practitioner who has made a medical, pathological or other scientific examination of a thing setting out-

(a) his qualification;

(b) that he has made the examination; and

(c) the facts that he has ascertained and the conclusion at which he has arrived as a result of the examination,

is admissible evidence in any legal proceedings in Court."

That Doctor's Report must be attached to his affidavit and the affidavit must comply with section 57(1) of District Court Act. Non compliance is a hearsay evidence and cannot be accepted.

The Police Report and Doctor's report are hearsay and cannot be accepted. There being no other evidence, I will tend to agree with Paul Mackay that the whole case is a frame up. I dismiss the whole case with cost.

In person Complainant

In person Defendant