Noi v Korowa [2004] PGDC 7; DC78 (4 December 2004)

DC78

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 73 OF 2003

ALUP ESTALLA NOI
Complainant

AND

JOHN KOROWA
First Defendant

MATHEW MAKURE
Second Defendant

MICHAEL SINGOL
Third Defendant

THE STATE
Fourth Defendant

Mt. Hagen

S W SENEKA, P.M.
14 November 2003
4 December 2004
14 July 2004

CIVIL CASE - Defendants are Policemen - Daughter report of assault by Security to father a Policeman - Defendants initial investigation assaulted complainant - Complainant adolescence and a worker - Complaint settled between Defendants, Security and Complainant - defendant not consistent with their side of agreement - Police initial investigation and settlement mishandled.

Counsel
Mrs Irong Noi Narakou, Complainant
State Solicitor, The State

JUDGMENT

S W SENEKA. This is a claim against the defendants in that on the 02/09/02 at Best Buy Supermarket, Mt. Hagen. Defendants assaulted complainant. Complainant therefore claim compensation arising from the assault together with humiliated and embarrassment and exemplary damages.

The parties in this case is the complainant of a young woman in her middle or late adolescent. The (3) defendants are matured Policemen also holding senior positions in Police Department and off course 4th defendant is the State.

When the complaint was put to them the three defendants denied the complaint while 4th defendant admit to the complaint. At the date of trial 4th defendant's lawyer Ms. Koimo offered not to cross examine. At the conclusion of the trial eight witnesses for complainant and (5) for defendants were called.

Evidence of complainant is as follows:-

On the 02.09.2002 two girls went to Best Buys Supermarket. Complainant works for Best Buy Supermarket as Admin Clerk and when she came out of her office about 11:00 am, she saw two young girls coming out of Security Office. She recognized one of them as Sergeant John Korowa (first defendant's) daughter. She talked to them and later told them to bring their parents. Some 15 minutes later the girls returned with their parents. Complainant claimed that John Korowa pointed his finger at her saying complainant assaulted his daughter. Complainant was with Dalas Lawek, Personnel Manager of Best Buys when first defendant marched to complainant pointed his fingers at her nose and shouted "why did you assault my child?" Complainant tried to explain but first defendant kept on pointing at her nose and shouting at the complainant. At that time when she saw Mathew Makure walking up to them, she was relieved because she thought he was going to help. She knew him as a local church leader and known to her family. He came upon her held her on the throat and lifted her off her feet. She struggled, cried, hurt, embarrassed and humiliated in the presence of her superior, staff members, policemen and customers. Dalas Kawak was very close to complainant and was able to observe what took place between complainant and defendant.

Soon after she rang her mother and with her went to the police station and they, the defendant heard the complaint. Defendant's witness Jessica Kerowa said she only pointed at the complainant for her to explain what occurred instead defendant came and assaulted complainant. At the police station first defendant admitted assaulting complainant and promised to pay compensation on 06/09/02. Security Officers of Best Buys were ordered to pay compensation. John Korowa turned up on 06/09/02 and promised compensation be paid on 07/09/02 but never turned up. So complainant's mother and brother went to report the matter at the Police station. Prosecutor Officer In-charge heard the complaint and asked them to return on 09.09.02. On 09.09.02, complainant, her elder brother, the Best Buy security and Best Buy Manager met with John Korowa and Bob Micheal Singol. The defendant's daughter and her friend were compensated with K30.00. John Korowa paid K70.00 later explaining that K70.00 was his share. That Mathew Makure was to be advised by Micheal Singol.

On 06/10/02 three weeks later Mathew Makure still has not paid and Mathew Makure claimed he had paid K70.00 but was assaulted by complainant's brother. Complainant's brother ended up pay K200.00 compensation.

On 07/10/02 at police station, John Korowa admitted that the K70.00 was not his but insisted that the problem was his and no matter who paid them the compensation was already paid and matter settled. Mr. Singol to settle the matter and shouted at them to return the K70.00 and take the matter to court. The K70.00 was returned thus the present case before this court.

Complainant insisted that first defendant assaulted her and later the three defendants lied to the Best Buys Security and the Manager. Their assault caused humiliate and embarrassment in public.

On the other hand defence evidence is as follows:-

The three defendants were at the police station, Mt. Hagen when they received verbal complaint from first defendant's daughter, Jessica Kerowa and her friend. They reported that they were sent by their class Teacher to buy some food stuff at Best Buy. While in the shop, her friend ate some pieces of chocolate and she was caught. They were taken into security office and told to pay the chocolate. They could not and so were assaulted and told to go and get money to pay up. They left without their shoes and on the way out they saw the shop girls calling them criminals and rascals. Jessica and her friend reported to the police apparently to Jessica's father. As a concern father he together with the (2) girls and Mr. Mathew Makure went to the shop.

When they arrived Jessica's father, John Korowa, to begin the investigation and asked Jessica who assaulted her. She pointed out complainant to her father.

Defendant John Korowa then walked up to complainant and asked why they called the two girls criminals and rascals and made them embarrassed in front of the public. Complainant was very aggressive, shouting and pointing her fingers at John Korowa and Mathew Makuri. John Korowa pointed at her and tried to cool her down. Mathew Makuri then used reasonable force (hand on her chest) to calm her down.

This investigation also led to the Security Personnel who actually assaulted the two girls. Later two female staff, two security guards and the Policemen went to the police station. At the police station and in the presence of OIC prosecution Major Micheal Singol solve the problem. The monetary settlement was to be on 09.09.02 at Best Buys Manager's office. On the 09.09.04 present in the Manager's office were the Manager himself Mr. Jacob Aseki two guards, complainant, her mother, brother Billy Noi, John Korowa, Micheal Singol while Mathew Makure was absent due to court appearance.

After exchanging apologies, Best Buys Securities John Kendes and Lolly Pops agreed to pay K30.00 to the two girls and K70.00 paid to complainant. John Korowa claimed there was no mention of any further payments.

Matter was settled there but without any good reason complainant's brother Billy Noi on 06/10/02 assaulted and cause injuries to Micheal Makure and Billy Noi appeared in court on 05/10/02 and was convicted and also ordered to pay K200.00 compensation to Mathew Makure.

Complainant's mother was not happy with the court order of K200.00 so they returned the K70.00 and instituted this complaint.

Defendants only pointed fingers at complainant and never assaulted her. If she was assaulted there was no medical report to support it. Complainant is using her brother's case to pay them back. They already settled this case and made payments so there was no basis for this case.

That being the facts presented before this court the issue while analyzing the evidence are;-

1. Was there assault under provocation
2. Was there a promise to pay another K70.00.
   

When the two girls were coming out of the security office John Korowa claim that the Best Buys girls were calling them criminal and rascals. In cross examination she said her father prepared the affidavit and that when Best Buy girls called out to them, she did not see who called as her head was bowed as they went out. When her father asked who called her criminal and rascal, she pointed to the complainant for complainant to identify who called them criminal and rascals. Jessica Korowa tried to explain but John Korowa was already on the move.

John Korowa in his evidence said he was upset when her daughter complaint to him. Together with Mathew Makuri went to Best Buys to initiate investigation. When they came upon complainant, John Korowa pointed his finger at complainant's nose and was shouting. Dalas Kawak, in cross examination explained, that complainant tried to explain but defendant shouted at her and Mathew Makure held her neck and lift her off the ground.

On the other hand first defendant said when they went to the back room of Best Buys complainant came out of the office shouting at the Police men at the top of her voice. This evidence does not match with John Korowa's evidence that when he said Jessica pointed to complainant John Korowa walked to complainant and asked her. John Korowa said he pointed his finger at complainant while Mathew Makure said complainant was so aggressive that he used reasonable force to claim her down. He admitted to putting his hand on her chest.

Mathew Makure acted on his Police training that complainant being aggressive and shouting at the top of her voice was hindering their official duties and as a policeman had acted accordingly. According to his evidence he wanted to calm her down. Had he desired complainant could have been arrested for such behaviour.

I'm bit reluctant to accept defendants evidence up to that point in time. Firstly John Korowa said he was upset as to what was done to his daughter and as a responsible father and a policeman he went to find out what and why Best Buys security did to his daughter.

In that state of mind they had gone to Best Buys and approached complainant. Defendant John Korowa at that time had approached complainant not as a policeman but as a father. He was pointing his finger at complainant while an investigator who does not know the other side of the story would ask question in a reasonable manner. Mathew Makure also went in a similar state of mind. He accompanied John Korowa as support but I believe his action went beyond his call of duty. I accept Dalas Kasak's evidence as truthful instead of calming complainant he did held her neck and lifted her up.

I'm of the opinion that both defendants assaulted complainant when John Korowa pointed and shouted at her and Mathew Makure held complainant's neck. On the balance of probability there was no provocation here because provocation arises where complainant's words, behaviour or attitudes when committed deprived defendant of their self control. Defendant when receiving report of assault on Jessica Korowa had ample time to consider what cause of action they will take. Court held that it was defendant who were shouting and assaulted complainant. Court also held that complainant did not assault defendant's daughter nor did anything to defendants to cause provocation. Defendants were policemen and retaliation I believe should have been far away from them.

On the issue of compensation there was an agreement at the police station that compensation was to be paid. It was also agreed that they will meet at Best Buy Manager's office for the payment to be effect. I agreed that there was no agreement for the amount at the police station. But indeed there was an agreement for amounts to be paid at the Best Buys Manager's office.

Complainant claim that defendants agreed to pay K140.00 first and second defendants to pay K70.00 each. That John Korowa said the K70.00 was his and that Micheal Singol promised to advise Mathew Makure to pay his share of K70.00. Defendants denied that was never said.

There may have been some heated arguments because Micheal Singol left without concluding the payment agreement. It is not clear what the verbal conclusion was. But what is clear is that John Korowa received the K30.00 on behalf of the girls and Mrs. Noi Narokou received K70.00 for complainant. Certainly Mathew Makure was not present throughout the meeting at Best Buys Manager's office he left half way through. I'm sure the amicable agreement was Mr. Mathew Makure and John Korowa to pay K70.00 each and John Korowa was to advise Mathew Makure to pay his share of K70.00.

Whether John Korowa told Mathew Makure or not, whether Mathew Makure heard it and refused to act his inaction landed him with further problem being assaulted.

Further when complainant asked Micheal Singol for the other K70.00 he challenged Mrs. Noi Narakou to put them to Court.

Having analyzed the facts court is of the opinion the following events took place.

Jessica Korowa and her friend after the incident in the Best Buys Shop went and reported to Jessica's father, John Korowa. He after obtaining the complaint went with Mathew Makure to Best Buy and confronted complainant. In the process John Korowa pointed his finger at complainant and shouted at her.

Complainant did not assault Jessica but was trying to explain to John Korowa but have no opportunity as Mathew Makure had come upon her held her neck and lifted her up off the floor. There were customers, staff and her boss Dalas Kawak around them.

At this stage, I'm of the view that first and second defendant did assaulted the complainant. Second defendant in his affidavit said he only put his hand on complainant to restrain or stop her from being aggressive to first defendant. While first defendant was only pointing his finger at complainant and at the same time shouting at her saying "who assault my daughter" I accept complainant's version that she was trying to explain to first defendant but he kept on pointing and shouting at her. Second defendant action (assault) is the result of or effect first of defendant pointing finger and shouting. Both actions are related and same.

Matter was settled at the Police Station and payments to be made at Best Buys Manager's Office on 09.09.03. At the Best Buys Manager's office payments were made in the following;-

K30.00 - by Best Buys Security to Jessica Korowa and her friend

K70.00 - by John Korowa

K70.00 - by Mathew Makure.

Mathew Makure had not paid as he was not present and was to pay at a later date. John Korowa was to advise Mathew Makure who failed to pay up so he was assaulted by Billy Noi complainant's brother. When complainant and her mother approached Micheal Singol he challenged them to institute a civil proceeding.

I am of the opinion that defendants as Policemen misconducted the case from the beginning. I based my opinion in the following discussion. Defendants are very senior police officers and in their handling of that case should consider carefully their actions. When first defendant received the complaint from Jessica Korowa he should attend to this case cautiously or allow another policeman to handle it. Jessica Korowa is his daughter and the relationship could be seen as affecting his judgement and actions. Mathew Makure was not present in the Manger's office when payments were made. He should pay the extra K70.00 or call for another meeting to agree on the amount to pay to complainant. His lack of action or delay only brought pain and suffering.

Micheal Singol is the most senior of the other two defendants. While in Best Buys Manager's office, he could not stay on to complete the mediation. He is the senior and was looked up to. His walking out of the mediation was a bad image to himself and the police. He should stay on and see that the matter takes its course to the end. As a senior officer he is obliged to remain no matter what the tension or situation was. He is also partly to be blamed for allowing this case to be instituted in District Court. Complainant was challenged to get this complaint to court. I have pointed out earlier that there indeed was assault and I believe the whole process from Jessica Korowa complaining to Police to Mr. Singol challenging complainant to pay this complainant were done on the attitude of carelessness and disregard of other feelings. Matter should have been settled while at police station and Best Buy's manager's office to pay compensation. On the part of complainant's mother (Mrs. Iron Noi Narakou) her attitude of aggressiveness and disregard of others feelings.

I am sure matter could have been settled if both parties have given in at some stage. Defendants in particular could have settled prior to Mathew Makure been assaulted. But because of unforgiveness towards each other each party must give away part of the total costs.

Total claim is K10,000.00, I will reduce it by half in the following;-

Assault	K2,000.00
Humiliate and embarrassment	K1,000.00
Exemplary	K2,000.00
Total Claim	K5,000.00

Mrs Irong Noi Narakou: Complainant
First Defendant: In Person
Second Defendant: In Person
Third Defendant: In Person
Fourth Defendant: State Solicitor