State v Famundi [2007] PGDC 117; DC643 (20 November 2007)

DC643

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 1120 of 2007

BETWEEN

STATE

AND

SEFE FAMUNDI
Defendant

Goroka: F MANUE
2007: October 03, 17, November 20

CRIMINAL- Particular offence – Unlawful assault whether the assault was lawful.

Held – Incidents of assault of the child are not directly related to this assault. This is because the chain of events have been broken by the date and the places where they occurred. Assault by the defendant was unlawful.

Cases Cited
Nil

References

1. Section 6 (3) of the Summary Offences Act.
   

Counsel
For The State - Senior Constable Pipi of Goroka Police Station
For The Defendant - In Person

20 November, 2007

REASONS FOR DECISION

F Manue: The defendant SEFE FAMUNDI has been charged for unlawfully assaulting Gibson Sikondowe on the 18 September 2007 at Watabung Primary School.

2. The case went on trial because the defendant claimed that both exchanged punches when exchanging words which did not go well with him.

3. And so the issue is whether the assault was lawful.

4. Prosecution evidences were from two (2) witnesses and a medical report was also tendered as an exhibit.

5. The victim Gibson Sikondowe’s evidence is that he is the principal of Watabung Primary School. He stated that at about 10:35 am on the 18 September, 2007 he was in his office. While seated there, the defendant ran into the school ground calling and looking for him.

6. Then he proceeded an Elementary School nearby and returned to the said primary school ground calling for the “Head master” again.

7. The witness said he left his office and came out to meet the defendant. When outside the defendant called him saying “Yu bai nau mi paitim yu”. The victim explained that they should go to KEMAUMBAU Elementary School to see a Teacher in Charge and the Board of Management of the school over an incident. That incident involved the defendants son punching the witnesses son, causing two toothes of the child to fall off and cuts on the lips.

8. Then the defendant again repeated what he said earlier. By this time, the witness said he removed his cap and shirt.

9. Upon seeing that, the witness went closer and asked the defendant what he was going to do. He said the defendant punched him first on his cheek with his right hand. The second time on the back of the head with his left hand.

10. The third punch was with his right hand on his facial area. Then the witness said he retaliated and punched the defendant. The second prosecution witness is Johnson Korilai, who is a teacher at the Watabung Primary School. He said on that particular week, Grades 3 to 8 were being given their tests. The defendant entered the school ground and got cross with the Headmaster (the victim).

11. He saw the defendant taking off his cap and skirt and the thongs he was wearing. He then threatened by saying “Bai mi kilim yu”. He said upon hearing the threat, the Headmaster went closer. That was when the defendant punched the Headmaster three (3) times. The witness said the victim received a cut on the nose area and was bleeding.

12. The medical report by a Nursing officer shows that the victim was still suffering bleeding on the nose, internally and there was a cut on the external part of the nose.

13. The Defendant gave an un-sworn statement. He explained that he was not usually in the village, but in a bush camp. And so when word was sent to him by the victim, over the incident between their children, he received it a week later. He said, as villagers, his wife and him, raised K10.00 through market sales. He was going to apologise to the victims child, thereafter.

14. He later heard that the victim has assaulted his boy.

15. This is not denied by the victim, but stated that he slapped on the cheek and spanked on the bottom of the child gently.

16. The defendant said his child cried down and told him what had happened.

17. According to the child the victim had punched him two (2) times in public. That made him angry, as he said, he was in the process of apologising to the victims child.

18. He said he went to the school with some of his boys to sort out the matter. He eventually punched the victim.

19. The difficulty, I have with the defendants statement is that he does not give specific dates of when he received the victims “toksave” and when his child went crying to him and when he went into the school ground after hearing from his child.

20. The law under which the defendant is charged is under Section 6 (3) of the Summary Offences Act.

21. Assault is defined under Section 6 (1) & (2) of the Act as:

6. 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) For the purposes of this section, a person who—

(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture, attempts or threatens to apply force 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 or apparent present ability to apply such force, is deemed to assault that person.

22. There is no question that the defendant did threaten to apply force and did apply force by way punching the victim.

23. The whole episode arose from an incident that arose between the sons of the victim and the defendant at a nearby Elementary School which is about 500 meters from where this incident occurred.

24. From the evidence both male parents of the children were concerned of their children. They were being protective of their children.

25. Initially, when the victims son was injured he had reported to the Police but elected to sort the matter administratively. He wrote to the teacher in charge and the Board of Management of the school calling on then that did not eventuate immediately.

26. After some two (2) weeks the victim located the child concerned with the help of his son and they assaulted him. This incident was reported to the defendant but he did not report it to the lawful authorities as the Police but instead fronted up the victim.

27. Although, these stated facts are concerns by both the defendant and the victim, the incidents on their respective children on Separate dates and times are separate issues. They are separate issues in Law because they occurred on different dates and time, although there seems to be a chain reaction from one incident to the other. The chain reaction of events from the assault on the child of the victim to the child of the defendant and this case are broken by different times and dates and places.

28. The issue of assault on the defendant should not be treated as directly related to the former assaults on the children.

29. Having said that, I now turn to the issue in this case. Was the assault on the victim lawful.

30. The evidence by Prosecution witness is that the defendant had come looking for the victim on Monday. Then the next day he returned. He threatened to assault the victim. Then he punched the victim three (3) times which is described in his evidence.

31. This evidence is not disputed and so it is credible and reliable.

32. There was nothing, he said, or did that may have provoked the defendant. Prior to the assault, it is my view that the defendant had an opportunity and time to report to the lawful authorities, over the allegation of his child being assaulted by the victim.

33. He had time for his temper to cool down. His village is less than a kilometre away from the school. There is no evidence that he ran all the way to the school to react to the assault on his child. He had time as there is evidence that he came with some of his boys, indicating that it must have taken time for him to organise for those boys to accompany him. Even when he entered the school ground he had to walk 500 meters to the Elementary School ground and back.

34. He had all these time periods to reconsider the appropriate and lawful way to tackle or resolve his displeasure of the victims action against his child. From my local knowledge of that place, the police station is located in a location before entering the school ground from where the defendants’ village is. He had an opportunity to report to the Police even on that date of the offence before entering the school ground. In my view, the action of the defendant is seen as taking the law into his own hands.

35. In my view, there is no lawful excuse for the assault. I find without doubt that the assault on the victim was unlawful.

36. The victim received a cut on the external area of the nose and bled internally and externally on the affected nose.

37. His condition is yet to be appropriately accessed by a medical officer.

For the State: Senior Constable Pipi
For the Defendant: In Person