State v Poning [2008] PGDC 36; DC689 (19 November 2008)

DC689

PAUA NEW GUINEA
[THE DISTRICT COURT OF JUSTICE]

DCCr No 175 Of 2008

THE STATE

V.

STANLEY PONING

Tabubil: P. Monouluk, SM
2008: 11 June; 31 October; 07, 19 November

VERDICT

SUMMARY OFFENCES – Unlawful assault – Section 6(3) Summary Offences Act – Defense of provocation – Onus on the State to negative defense – Inconsistency in the State evidence – Evidence deemed victim as attacker – State not able to negative defense – Not guilty verdict returned.

Cases:

1. Brown v. Dunn (1893) 6 R 67
2. Supreme Court Reference No.6 of 1984 [1985] PNGLR 34
3. The State v. Davelambem Yangidao (1980) N278.

References:

1. Summary Offences Act Chp. 264, s.6 (3)
2. Criminal Code Act Chp. 262, 267,335
   

Counsel:

First Constable Paul Irie for the State
Defendant in person

19 November 2008.

1. P. Monouluk, SM: This matter is adjourned to today for the court to make its finding as to whether or not the defendant is guilty of the charge of unlawful assault contrary to s.6 (3) Summary Offences Act Chp. 40.

2. The State had earlier alleged that on Sunday 20th April 2008 the defendant had assaulted the victim by first pushing him to the ground and then punched him on his left chin. The defendant did not deny the charge but said that he was provoked by the victim.

3. Although provocation is not stated as a defense under the Summary Offences Act (supra) it is now settled since 28th February 1985 that provocation under s.267 of the Criminal Code Act Chp. 262 is very much applicable also to a charge of unlawful assault under the Summary Offences Act (supra): Supreme Court Reference No.6 of 1984 [1985] PNGLR 34 and therefore a defendant charged under s.6 (3) of the Summary Offences Act (supra) has the same benefit to that of a person who is charged with unlawful assault under s.335 of the Code to sought reliance on the defense of provocation under s.267 thereof.

4. It is a practice of law that when such defense is raised the onus rests on the State to call evidence sufficient enough to negative the defense so raised: The State v. Davelambem Yangidao (1980) N278.

5. After the closure of the defense case the court received from the parties submissions as to the issue of guilt or the lack of it. The court is therefore asked to decide from the evidence whether the State was able to discharge the defense put forth by the defendant. This is a question of law the court must answer.

6. It is not disputed that the defendant came upon a group of people being addressed by the victim. As he stood aside to listen the victim turned his attention to him and began addressing him. In the course of the exchange of words the defendant pushed the victim down to the ground and further punched him on his left chin.

7. In my assessment of the evidence, it s clear that the victim started the argument with the defendant. Although denied by the victim, there was evidence by the State’s own witness Cliff Bosep that at the time of the confrontation the victim had on his person an umbrella. This revelation came about during the examination-in-chief by the State of Bosep and further cross-examination of him by the defense.

8. I would like to believe that at the time of the incident the victim had on him an umbrella as per the evidence by Bosep. At this stage it is not whether the victim had used it against the defendant or not. The point is that this aspect of the evidence was never revealed by the victim himself to the court during evidence-in-chief but came out from his own witness. The fact that this is the case, it goes to show that the victim may not be a witness the court can rely on; it goes to question his integrity as a witness at all.

9. The defendant first brought the umbrella to the attention of the court when he began to put to the victim under cross-examination whether the victim had had on him an umbrella which he denied. Similar questions were put to Bosep who, unlike the victim, admitted that the victim had had on his person an umbrella at the time of the confrontation. This line of questioning followed later with the evidence in-chief by the defendant that the victim did provoked him by pointing at his face an umbrella on more than one occasion prompting him to respond by pushing the victim who fell to the ground.

10. This manner of presentation by the defense complies with an important principle of law in respect to puttage questions. In the case of Browne v. Dunn (1893) 6 R 67 the court makes it clear that before a defendant seeks to introduce a piece of evidence in examination-in-chief it must first introduce it by way of a puttage question to the prosecution witnesses during cross-examination, which the defense has done, and later back it up with appropriate evidence to substantiate the questions so put to the state witnesses.

11. In the present case, the defense has done that to further its course that the defendant was relying on provocation by the victim who had used an umbrella to assault him by first pointing it at his face in a threatening manner thus prompting him to react. Not only has that been but my review of the evidence further showed few more things to further strengthen the defense case which I wish to highlight.

12. There is evidence from the victim during re-examination when asked by the State whether anyone had come in to stop both of you from fighting and the victim responded in this manner: "Yes, when I fell down others came to stop me when I stood up". This may mean that the victim may have been attacking the defendant also therefore it took others to come and stop him and not help him. On the other hand, there is no evidence the defendant was being prevented from attacking the victim so it would seem that the attack was coming more from the victim. There is further evidence from Bosep that the defendant had run off. This again shows that the defendant may not be the attacker after all. He had to flee from the victim who appears to me to be the attacker trying to attack him further.

13. I am of the opinion that the State is not able to call evidence to negative the defense so raised by the defendant. In fact the evidence by the State apparently goes to further the defense case and the untruthfulness of the victim about the issue of umbrella did not help at all. On this basis I hereby return a verdict of not guilty against the defendant.

Orders accordingly.