Asause v Bro [2007] PGDC 40; DC521 (18 June 2007)

DC521

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

DCCr 470 OF 2007

BETWEEN

EKA ASAUSE
Informant

AND

ANDREW BRO
Defendant

Goroka: F MANUE
2007: May 23; June 18

CRIMINAL- Unlawful assault – whether assault was lawful – provocation – onus of discharging the defence is on the prosecution –

Held – In the absence of discharging the defence – the defence must be upheld – Assault was lawful.

Cases Cited
Supreme Court Reference No. 6 of 1984.
Re: Provocation [1985] PNGLR 31
The State –v- Dave Lambem Yangidao (1980) N278
R –v- Agana Goguna (1965) N364

References
Section 6 (3) of the Summary Offences Act
Section 266 of the Criminal Code Act

Counsel
Sergeant Warkia, For The State
In Person, Defendant

18 June 2007

REASONS FOR DECISION

F Manue: Mr. Andrew Bro, stands charged that he did unlawfully assaulted another person who is Mr. John Lin on the 03 of May 2007 at Wanda Store Limited in West Goroka.

2. The defendant has been charged under Section 6 (3) of the Summary Offences Act.

3. The issue is whether the assault was lawful.

4. The prosecution called two witnesses who are Mr. John Lin and Mr. John Mondo. The evidence of Mr. John Lin is that he is the manager of Wanda Store Limited, which operates a store at West Goroka. He stated that on that night he was accompanied by three other persons who went to Wanda Store as a run check on security personal guarding the premises. On arrival at the shop the night duty guard was not at his guard post. He stated that the defendant had said something, which he possibly did not hear, so he asked a policeman, who went with him as to what the defendant had said. He was told by the policeman that the defendant had said words to the effect of “kongkon tin kon tan”.

5. He said the defendant was cross when he made the remarks.

6. The witness also stated that he was threatened by the defendant by threatening gestures and words to the effect of saying that this was not his place and that he would be killed. He made the threatening words three (3) times.

7. He said the threats were for the time being stopped by policeman. Later on he was punched on the left eye brow where he received a deep cut.

8. When asked whether anything happened prior to being punched, he denied.

9. At this juncture, I wish to point out the fact of the presence of Mr. Mondo, who is the second prosueciton witness and a reserve constable, as to why he was there. Whether he was there as an individual off duty or whether he was on duty then. If he was on duty, whether he was attending to the complaint. If not then what was he there for.

10. I raise these questions, because there is no explanation of his motives of being there.

11. If he was there on the invitation of the complainant then in my view such practice sets a bad precedent in that members of the Police Force, a State Service would be seen to compromise their constitutional role and duties when accompanying selected class of members of the community. The practice is also dangerous in that their constitutional roles and duties may be seen to be partially carried out in contrast to serving the wider community at large.

12. The second witness is Mr. John Mondo, a Reserve Constable of the Police Force attached to Goroka Police Station. He said he accompanied the first witness who was out on a routinal check on his guards at his shops at around midnight on Thursday 03 May 2007. He said Mr. Lin, when checking his shop at West Goroka, found that one of his guard was not stationed at the shop. He said Mr. Lin then was arguing with one of his guards. He said, the defendant was guarding Bintangor Store at West Goroka, and he came. He said he was told by their driver that the defendant said words to the effect of “king kong kang”.

13. He was urged by their driver to get out and check on the source of the words. When the words were spoken the second time he got out. He then generally told all the security guards there to calm down as Mr. Lin was getting on his guards for being absent from their duty post.

14. He said later Mr. Lin came to him and asked who had made the remarks. The defendant and Mr. Lin then exchanged arguments.

15. Then the defendant who is an employee of Guard Dog Security, picked up his radio and called for re-enforcement.

16. After that, the defendant threatened Mr. Lin with a bush knife, saying “Bai mi kilim yu, em ino ples bilong yu”.

17. He said, in response to the defendant’s radio call for re-enforcement, a dyna truck and a land cruiser of defendants employer arrived with 5-6 other guards.

18. Defendant then punched the victim, who received a deep cut on his eye brow.

19. A medical report was also tendered as an exhibit.

20. The defence called three (3) witnesses. Andrew Bro, gave evidence on his own behalf. He stated that it was almost midnight of 03 May 2007. All the security guards of shopping centre at West Goroka gathered together around a fire they made. Among them also were many others at this time of the National Election. He said Mr. Mondo, then asked him whether he had shouted, which he denied.

21. He said Mr. John Lin then punched him (defendant) three (3) times, which he received a swollen face as a result.

22. He also stated that Mr. Lin and those who accompanied him were all drunk.

23. The second witness, an employee of AB Security firm who was also guarding Bintangor Shop at West Goroka with the defendant. He said Mr. Lin and those with him were talkative which attracted a lot of attention, so he left his guard post to see for himself. He said, Mr. Lin hit the defendant three (3) times. Later the defendant punched Mr. Lin. He also testified that Mr. Lin had applied an electric shock device on the defendant on his head.

24. In relation to the insulting shouts, he said that people travelling in a car on the main road had shouted “king kong kang”.

25. The third defence witness is Jeffery Bro, who is not related to the defendant as the surname suggests. He said, he is an employee of Protect Security firm and was assigned to guard Mr. Lins property. He explained of why he was not at his place of work, which I consider to be quite reasonable and acceptable.

26. The same explanation was given to Mr. Lin who did not accept it and began to argue with him. This probably suggests that he was not sober as stated by the defendant.

27. He also said Mr. Lin took his torch, (assumably the electric shock device) and held it against the defendant. It was later taken away by the policeman (John Mondo). Then Mr. Lin hit the defendant three (3) times. Defendant called for re-enforcement – on arrival of re-enforcement defendant punched Mr. Lin once on the eye brow.

28. The issue at hand is not whether the assault on Mr. Lin was unlawful, but lawful. In other words, is there a defence of provocation available to the defendant.

29. Section 6 (3) of the Summary Offences Act is restated hereunder –

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

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

30. Although the Summary Offences Act does not create defences such as provocation there is case precedent that provocation under Section 266 of Criminal Code is available to a charge of unlawful assault under the Act. See Supreme Court Reference No. 6 of 1984 and the Provocation [1985] PNGLR 31.

31. At the outset, on plea by the defendant, the prosecution was put on alert that provocation would be raised as a defence. During the prosecution case, the defendant unsuccessfully attempted to raise the defence by way of telling his reason for the assault. This also was ample notice to the prosecution to negative the defence. The State –v- Dave Lambem Yangidau (1980) N278, R-v- Agema Guguna (1965) N364. The onus is on the prosecution to negative the defence.

32. Having considered evidence from both the prosecution and the defence, I perceive the events in this chronology.

1. On that relevant date Mr. John Lin and his party proceeded to West Goroka in a Toyota Land Cruiser, 10 seater.

2. Mr. Lin became upset when the security officer of his shop was not seen there.

3. He argued with the guard, who is the third defence witness, namely Jeffery Bro.

4. The defendant and his second witness Lukas Kimin came to where the argument took place.

5. Some passer byes on the road shouted “king kong kang”.

6. Mr. Lin applied force in the nature of electric shock and punch the defendant.

7. The defendant called re-enforcement.

8. When re-enforcement arrived the defendant punch Mr. Lin.

33. Having considered the chronology of the events, I consider that the whole incident would not have eventuated if Mr. Lin and his friends were not drunk.

34. There is evidence that they were drunk and this was not rebutted by the State witnesses. State witnesses denied all that saying nothing happened prior to Mr. Lin being assaulted.

35. Secondly, evidence from the prosecution clearly shows that the remarks “king kong kang” was heard by either messers Lin or Mondo.

36. Evidence suggests that those remarks were not from the defendant but by those travelling by car on the public road. In my view Mr. Lin did not properly verify the source of those insulting or abusive remarks. He overreacted by punching and assaulting the defendant. There is evidence that the defendant then punched Mr. Lin.

37. As I said, it is the duty of the prosecution to negative that the defendant acted in provocation.

38. It is the prosecution duty to establish whether the defendant after being punched had time to cool his temper, even after re-enforcement arrived. Although no time span was given, it could seem that the defendant reacted and punched Mr. Lin soon after was punched. The assault on Mr. Lin in my view is proportionate to the force applied to him. In that while Mr. Lin was punched only once, he had applied electric shock device on the defendant as well as punching him three (3) times.

39. I therefore find without doubt that the defendant acted lawfully when he was provoked.

40. I find that the assault was lawful and excused as a defence according.

40. Therefore the case be dismissed and the defendant be discharged. His bail be refundable.

For the State - Sergeant Warkia, of Goroka Police Station
For the Defendant - In Person