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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
DCR 41/2010
BETWEEN
POLICE
AND
FRANK BIRA
Defendant
Madang: J. Kaumi
2010: 12th /29th January, 12th/ 19th/26th/30th March
VERDICT
CRIMINAL LAW-Summary offence-Summary Offences Act, Part III, Protection of Persons-Section 6 subsection (3) Assault-Trial-Elements of assault discussed
CRIMINAL LAW-Defence of Provocation-issue for trial-Section 267-Defence of Provocation-Elements of the defence of provocation discussed-prosecution must establish that one or more elements are not present-difference between very angry and loss of self control
CRIMINAL LAW-Assault General rule is that in criminal cases it is for the prosecution to prove, and to beyond reasonable doubt, every element of the alleged offence.
(1) Section 267 defines the defence of provocation.
(2) The Criminal Code Section 267 mandates that if a person is provoked into assaulting another person or is provoked into committing an offence which involves an assault, he may be excused from criminal responsibility as a result of that provocation.
(3) The defence of provocation under Section 267 of the Criminal Code is applicable and available to the charge of unlawful assault under Section 6 of the Summary Offences Act 1977
(4) Sufficient evidence has been adduced to this Court for the defendant to legitimately raise provocation as a defence. The burden of proof now rests with the prosecution to prove beyond reasonable doubt that one or more of the elements of the defence did not exist.
(5) The term 'ordinary person' used in Section 267 refers to an ordinary person in the environment and culture of the defendant.
(6) The prosecution discharged the onus placed on it by disproving all the elements of the defence of provocation on the requisite standard of proof that the defendant acted without any legal provocation.
(7) The defendant though angered did not cease to be a master of his understanding or in the words of s.267, to be deprived of the power of self control. That the defendant could not be believed because a reasonable body of evidence adduced in court showed that his actions were more in the spirit of vindictiveness rather, than of loss of self control.
(8) Therefore the defendant could not avail himself to the defence offered by s.267.
(9) The prosecution has established beyond reasonable doubt that the defendant unlawfully assaulted the complainant.
CASES CITED
Regina v Hamo [1963] PNGLR 9
Regina v Rumints-Gorok [1963] PNGLR 81
Regina v Oa {1967-68] PNGLR 1
SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 2
State v Inawai Moroi [1981] PNGLR 132
Reference No.6 of 1984; Re Provocation and Summary Offences Act 1977, Section 6 [1985] PNGLR 31
Garitau Bonu and Rosana Bonu v The State (1997) SC 528
State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N 22
Legislation
Constitution of PNG
Criminal Code Act 1974, Chapter 246
Summary Offences Act, Chapter 264
Abbreviations
The following abbreviations appear in the judgment
DCJ Deputy Chief Justice
J Justice
No Number
PNGLR......... Papua New Guinea Law Reports
R Regina
SCR............ Supreme Court Reference
S Section
ST State
S C Supreme Court
v...................versus
TABLES
The following tables appear in the judgment.
1. WITNESSES CALLED BY THE POLICE
2. WITNESSES CALLED BY THE DEFENDANTS
Trial
This was the trial of a defendant charged with unlawful assault.
Counsel
Senior Constable David Bel, for the Police
Defendant in person.
INTRODUCTION
1. Kaumi M: This is a decision on verdict of a man who pleaded not guilty to the charge of unlawful assault contrary to s.6 (3) of the Summary Offences Act and raised the defence of provocation. A trial was held to determine whether or not this raised defence was made out.
BACKGROUND
(Brief Facts)
2. The incident giving rise to the charge took place at Odd village just outside Madang Town, in January 2010.. The allegation is that the defendant unlawfully assaulted faced the following information:
"Frank Bira,49 years of age of Odd village, Madang stands charged that he.......on the 1st day of January 2010 at Odd village, in Madang unlawfully assaulted another person by punching and kicking her body namely Shirley Wame, a national female".
The information was contrary to section 6(3) of the Summary Offences Act.
3. The defendant was present throughout the trial.
EVIDENCE
THE POLICE CASE
4. The Police called two witnesses to give oral evidence.
5. Table 1 lists and describes the Police witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.
TABLE 1 WITNESSES CALLED BY THE POLICE
NO NAME DESCRIPTION DAY DATE 2009
1. Shirley Wame Complainant 1 12/03/10
2. Jonathan Mane.........Student 1 12/03/10
6. The first witness for the prosecution was Shirley Wame. In examination – in chief, she stated that she worked at the Coast WATCHERS Hotel and lived at Odd village.
7.On Friday 1st 2010 between 8:00 and 9:00 am she walked down with Robin Anan and Jonathan Mani to the defendant Frank Bira's residence and told the two boys she was with that she wanted to go in and buy a flex card and wish her one and only sister, a happy new year.
8. She walked up to the front of Frank's house and called her sister's name, June Wame twice and instead of June coming out, her husband, Frank came out onto his verandah and started screaming at her.
9. Then he came down and pushed her to the ground, telling her continuously to get out of his yard.
10. Robin walked in to stop Frank and get her out, but Frank continued that to both of them and managed to throw me on the cactus plant.
11. Frank finally got them out of his yard but continued screaming and swearing and started pushing Robin and Jonathan causing them to retaliate.
12. Robin and Jonathan retaliated to Frank because he swore at them in Pidgin,"yupela kism em, spakim em na kuapim em." She said she had walked away when the defendant's son Bill ran up to her and punched her.
13.Jonathan then picked her up and told her to move so she had walked for some distance when Frank ran up to her and punched her to the ground, kicked her and stood on the right side of her neck.
14. Whilst this was happening a crowd had gathered and a community fight ensued because of two persons.
15. She said she had lived at Frank's residence before she had gone there twice to buy flex cards and that she didn't have any difference with Frank before she entered his premises on the material date.
16. She suffered some injuries and as a result had scars on her right hand as a result of being thrown on the cactus plant.
17. In cross-examination, the witness said she wasn't drunk nor were her witnesses drunk and they were not holding bottles of beer or a carton of beer and further that she could go and ask for her sister.
18. The witness said she called twice, and Frank responded by coming out, screaming and disturbing his own family.
19. She didn't cause any disturbance for Frank to come and scream at her and attack her.
20. In re-examination, the witness said that she stood on the grass facing Frank's house when she called out to her sister.
21. The second witness for the prosecution was Jonathan Mane Anan who was unemployed and is a student with DODL where he was upgrading his marks.
22.On Friday 1st January 2010 between 8:00 am and 9:00 am, Shirley Wame, Robin John and himself were walking on a road in Odd village.
23.Shirley walked into Frank's premises to buy a flex card whilst Robin and he stood on the road.
24. He heard Shirley call for her sister to come out to her but Frank came out and started assaulting her for whatever reason, he didn't know.
25.Frank dragged Shirley by the collar of her shirt and pulled her to where Robin and him were standing, threw her on the main road, and kicked her and then stepped eon her neck.
26. The witness and Robin then rescued her before she got badly injured.
27. Frank's son Bill then assaulted Shirley and Shirley was badly hurt so Robin and him took her home.
28. The fight that later took place there happened after he and Robin had gone outside.
29. The witness said the distance from where the Court premises gate was to the mango tree immediately behind Court room 2, an estimated distance of 20 meters
30. From where he and Robin stood, they could see only Frank dragging Shirley out of the premises and that Frank used his right foot to kick her sides, then her head and then stood on her neck.
31. In cross-examination, the witness said we had stood at the road and he didn't enter Frank's premises and wasn't drinking beer.
32. The witness said he saw Frank dragged Shirley to the road where Robin and he were standing and then punched and kicked her because the view was clear and it wasn't a jungle.
33. The witness said that Shirley had not spoken in a loud voice because she was close to Frank's house.
34. In re-examination, the witness said when Frank approached Shirley he was frustrated and angered and he didn't know what Shirley had done whilst she was in Frank's house.
35. In response to questions by the Court the witness said the only things between where he stood at the road and Frank's house were some dwarf type flowers.
36. That ended Jonathan Mane's evidence and the police case was closed.
THE DEFENCE CASE
Outline
37. The defence called one witness the defendant James Mone and the other three co-defendants elected to exercise their right to remain silent.
Oral Evidence
38. Table 2 lists and describes the defense witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.
Table 2 WITNESSES CALLED BY THE DEFENDANTS
NO NAME DESCRIPTION DAY DATE (2009)
1. Frank Bira Defendant 1 12/03/10
2 Delmah Bira Daughter 1 12/03/10
3 Junie Bird Wife 1 12/03/10
39.The first defence witness was the accused who chose to give a sworn testimony in pidgin. In examination – in chief he said ha was from Odd village.
40.On Friday 1st January 2010 between 8:00am and 9:00 am he and his family were asleep in their house when he heard drunken men and women calling out from the verandah of their house. When he heard this noise he knew that there must be a problem or that some drunkards had come to his yard.
41.That as he walked to go out of the house, his daughter, Delmah had opened the curtain and saw Shirley Wame with half a bottle of beer on her right hand standing on the steps leading to his verandah. He told her stay and watch.
42. When he went out on the verandah he was wearing a pair of trousers only and saw Shirley holding half a bottle of beer in her right hand. When Shirley saw him, she asked to see his wife.
43. The witness did not think it was appropriate for her to see his wife because she was under the influence of liquor and of her appearance which was like she had been drinking all night until day break.
44. He asked her quietly twice to leave his premises because she was drunk and to come the next day when she was sober.
45. Shirley refused to leave and started to argue with him and started pushing him, provoking him to push her out causing her to drop her bottle of beer which he put away at his house.
46. The drunkards who had escorted her waited for her at the entrance while he was pushing her. When Jonathan Mane and Robin John heard him pushing her out Robin came into his yard and pulled her out.
47. While Robin was pulling Shirley backwards they fell backwards back to the cactus plant.
48. About a minute after Robin had pulled Shirley out of the yard, about twenty drunkards came into his yard and both Robin and Jonathan were in this group. This group assaulted is son, Bill and another boy who was suffering from TB.
49. The witness was provoked upon seeing this, so he kicked and hit Shirley.
50. In cross-examination, the witness said Shirley was the younger sister of his wife.That Shirley had lived with them but he removed her because she was disrespectful.That the witness had asked her in a nice way to leave because she was drunk and to come back the next day.That he couldn't control himself when he saw the injuries suffered by his son Bill and the other boy and that Shirley was the trouble maker and this provoked him.
51. That ended Frank Bira's evidence.
52. The second defence witness was Delmah Bira who is a 15 year old Grade Ten Student at Tusbab Secondary High School and daughter of the defendant.
53.In examination-in chief, the witness said she said on 01/01/10 between 8:00 am and 9:00 am she saw Shirley, escorted by drunkards came into their family premises and stood on the steps and called out to the her mother disturbing the family who were still asleep. She saw Shirley with a half bottle of beer in her right hand.
54. Her father Frank Bira came out and went outside and asked Shirley what she wanted but wouldn't allow her to see the witness because she was under the influence of liquor but to come another day when she was sober. Shirley argued with Frank, and this provoked Frank to push her out of the premises. Whilst this pushing was going on, Shirley dropped her bottle of beer. Jonathan Mane and Robin John Anan pulled her out of the yard. Whether Frank assaulted her or not she didn't see it.
55. After a few minutes, Shirley, Jonathan Mane, Robin John Anan and twenty other drunkards came into the premises and assaulted her older brother Bil and another man who was a TB patient, Collin Aimbap. Bill was hit on the head with a stone.
56. In cross-examination, the witness said Shirley was escorted by drunkards who had waited for her at the entrance to their premises, while she went in alone and when Frank assaulted her and was pushing her out of the premises, these drunkards came in and pulled her out.
57. The witness said she didn't see these persons drink with Shirley that she didn't how Shirley came but she was under the influence of liquor and she and she saw what fully happened between Shirley and Frank because it was outside their house. That after this first argument between Frank and Shirley, a big confrontation happened.
58. There was no reexamination and that ended Delmah Bira's evidence.
59. The third defence witness Junie Bira, the wife of the defendant and lives at Odd village. In examination in chief, the witness said on 01/01/10 between 8:00 am and 9:00 am whilst she and her family were still asleep Shirley came into their premises and called her 3 or 4 times at the top of her voice.
60. Frank told her to stay in the room because of the tone of her voice and she could tell that Shirley was around where the steps were. Frank told her to leave twice but Shirley raised her voice, arguing with Frank that she wanted to see the witness. There was no cross examination.
61. This ended Junie Bira's evidence and the defendant's case was closed.
SUBMISSION BY THE DEFENDANT
62. The defendant did not make any final submission
SUBMISSION BY THE POLICE
63. The Prosecutor did not make a final submission either but left it to the Court to make a decision on what evidence had been adduced in Court.
ISSUES
THE LAW: ELEMENTS OF THE OFFENCE
64. The defendant has been charged with unlawful assault of another person under Section 6 (3) of the Summary Offences Act, which states:-
A person who unlawfully assaults another person is guilty of an offence.
Penalty: A fine not exceeding K500.00 or imprisonment for a term for a term not exceeding two years.
(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 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 making the attempt or threat has an actual or apparent present ability to apply such force,
is deemed to assault that person.
(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. (Amended by No. 14 of 1985. s.1).
(4) Where a court convicts a person of an offence against Subsection (3), it may order him to pay-
(a) to the person, in relation to whom the offence was committed; or
(b) to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,
Such amount by way of compensation who suffers bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just.
DISCUSSION OF ELEMENTS OF THE OFFENCE
65.The defendant has been charged with unlawful assault and the prosecution must prove beyond reasonable doubt that –
(i). the defendant
(a) directly applied force of some kind to the person of another;
OR (b) indirectly applied force of some kind to the person of another;
OR (c) by bodily act or gesture attempted to apply force of some kind to the person of another when he either had or appeared to have the ability to apply such force;
OR (d) by a bodily act or gesture threatened to apply force of some kind to the person of another when he either had or appeared to have the ability to apply such force;
AND
(ii) EITHER
(a).The other person did not consent to what the defendant did;
OR (b) the other person did not consent but only because of a false representation of fact made by the defendant who either knew it was false or acted recklessly, not caring whether it was true or not;
AND
(iii) the defendant had no lawful excuse or justification for his act.
They are the elements of the offence. They are subject to three things. Firstly, the offence requires the prosecution to prove that the defendant, inter alia, directly applied force of some kind to the person of another. Secondly, that the other person did not consent to what the defendant did. Thirdly, the defendant had no lawful excuse or justification for his act
66. The issues of law that arise in the present case therefore are:-
(a). Did the defendant directly apply force of some kind to the person of the complainant? If yes, the first element of unlawful assault is established. If no, he must be found not guilty of unlawful assault.
(b). Did the complainant consent to what the defendant did? If yes, he must be found not guilty of unlawful assault. If no, then the second element of unlawful assault is established.
(c). Does the defence of provocation apply in this case? If yes, he must be found not guilty of unlawful assault. If no, then he must be found guilty of unlawful assault.
ASSESMENT OF EVIDENCE
67. It is necessary therefore to determine which of their evidence are credible before making a finding of the relevant fact.
68. The following approach will be taken:
(i). I will address the standard of proof...
(ii). The non – contentious facts will be laid out.
(iii). Contentious Material Issues of Fact- I will assess the facts that relate to the credibility of the various witnesses.
(iv). Application of issues of law to the findings and then make a determination of the charge.
STANDARD OF PROOF
69. In any criminal trial the defendants can't be convicted of simply on the account given that is of suspicion or only a belief on the part of the tribunal fact (the Court).
70. I t is incumbent on the Court to determine after weighing of all the evidence adduced before it and considered whether there are reasonable grounds for believing that the defendant unlawfully assaulted the complainant and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists.
71. It is settled law that the State has the onus of establishing the charge against the defendants on the required standard of proof, beyond reasonable doubt. This is particularly pertinent to the essential elements of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court in SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1] Greville Smith J made this clear in the terms:
"The general rule is that in criminal case it is for the prosecutor to prove, and to prove beyond reasonable doubt, every element of the alleged offence...The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly the Crown must prove every fact, whether affirmative, or negative, which forms an indictment of the offence."
72. The Supreme Court judgment in Garitau Bonu and Rosana Bonu v The State [2] applied the rule that in the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. This was also applied in the State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani [3]
73. So the first question to ask is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the defendant unlawfully assaulted the complainant.
NON CONTENTIOUS FACTS
74. The non contentious facts are:-
(a). The complainant Shirley Wame is the younger and only sister of Junie Bira the wife of the defendant and the third witness for the defence.
(b). The second defence witness Delmah Bira is the daughter of the defendant and Junie Bira, and is a Grade 10 Student at Tusbab Secondary High School.
(c). The complainant was on the defendant's premises at Odd village on the 01/01/10 between 8:00 am and 9:00 am.
(d). Robin John Anan and Jonathan Mane were waiting for Shirley on the road at the entrance to the defendant's premises.
(e). The defendant assaulted the complainant on the 01/01/10 between 8:00 am and 9:00 am, outside his premises
CONTENTIOUS MATERIAL ISSUES OF FACT
75. There are five contentious material issues of fact
(a). Did the complainant talk in a loud voice?
The defendant and his two witnesses are immediate family members and their evidence is not independent and these two witnesses were obviously partisan to the cause of the defendant. The defendant said after he had asked the complainant twice to leave his premises she started to argue with him, push him and provoke him. He makes no mention of the complainant raising the tone of her voice in his evidence of chief though he alluded to this in his cross examination of Jonathan Mane. I expected him to naturally mention this in his evidence in chief but he failed to make any mention whatsoever of this point. His failure to make any mention of the complainant raising her voice or talking in a loud voice is significant in that, part of his defence of provocation stems from the complainant's alleged tone of voice and on this point there is nothing for this Court to go on except the evidence of Delmah and Junie which I have already indicated as not being independent. The only independent evidence adduced on this point is from Jonathan Mane who though being a Police witness was not related to the complainant by blood and had only walked with the complainant to the defendant's house that morning. I note that he was 20 meters from the defendant's house had a perfect view of it and said that the complainant had talked in a normal voice because she was close to the house. I accept this version as a logical explanation as to the tone of her voice at the material time. I have difficulty in accepting the versions given by both Delmah and Junie as not only were they both partisan to the cause of the defendant but because of the fact that the complainant was close to the defendant's house and as Junie and Delmah intimated in their respective evidence, she was on the foot the steps that led up to the verandah and their versions do not agree with common sense. Why would a visitor come to someone's doorstep and call out in a loud voice for the owner to come out unless the visitor was inviting trouble from the house owner. What I do find firstly, is that the complainant spoke to the defendant in a normal vocal tone but was persistent and that the defendant spoke in a loud and violent tone to the complainant and disturbed his family and attracted the neighborhood to come and see what was all the commotion about.
I would answer the question in the negative for the reasons given above.
(b). Did the complainant carry a half bottle of beer?
The defendant and his witness Delmah both stated that the complainant had come into their premises with half a bottle of beer in her right hand and that this bottle fell to the ground when the defendant was pushing her out of his premises. The defendant said under oath that he put this half bottle of beer away at his house yet he did not produce in court as evidence. The complainant and Jonathan both stated that they were not under the influence of liquor at the material time and the former in particular was adamant under vigorous cross examination that she was not drunk nor that she had any beer bottle or beer carton in her possession and maintained that she had come to the defendant's premises on the material time to buy flex card and wish her sister, a happy new year. Delmah's description of the manner in which the complainant allegedly held the bottle of beer was 'parrot like'. By this I mean that her description was identical word for word with that of the defendant. This therefore suggests one of two things either that this aspect of her evidence was coached or that she did not tell what happened. Either way I do not accept this aspect of her evidence for the above reason.
The second witness showed signs of being coached of what to say though her demeanor in the witness box was credible. The disparities in her evidence it strongly suggest this e.g. she says that her father hit and pushed the victim from the front of their house and all the way out to the road, but doesn't say anything about him assaulting her on the road or anything about him pushing her onto the cactus plant in the yard, though her father says in his evidence that he saw her fall onto the cactus plant. Surely common sense dictates if she could see her father push the victim out of the yard for a distance of twenty meters she would have seen the victim falling onto the cactus plant. I am there fore not convinced by her evidence that the victim had a half a bottle of beer in her right hand. She appears to have been coached to say this and indeed what to say in this court. Nor was this bottle of beer produced in court as evidence by the defendant.
The answer to the question posed is 'no, the complainant did not carry a half bottle of beer.
(c). Did the defendant assault the complainant on his premises?
The defendant said in his evidence in chief that he only pushed the complainant out of his premises. His witness Delmah said in cross examination that the defendant hit the complainant in his premises and pushed her out of it. This piece of evidence is significant for the following reasons, firstly, it contradicts and is inconsistent with what the defendant said that he only pushed her, secondly, it affirms what both the complainant and Jonathan Mane said in evidence that the defendant assaulted her on his premises.
I find that the defendant had a difference with the complainant prior to 01/01/10 and had removed her from his house as a result.
In other words in the first incident all the victim did was to talk and perhaps argue with the defendant. I find she did not use any profanities that could amount to some form of provocation within the parameters of Sec.266 of the Criminal Code.
I answer question 3 in the affirmative, the defendant assaulted the complainant on his premises on the 1/01/10.
(d). Was the complainant part of the group of men who assaulted Bill Bira and Collin Aimbamop?
I find that there was no evidence adduced in court establishing any connection between the complainant and the group of persons who attacked Bill Bira and Collin Aimbomop. It is not disputed that the complainant was accompanied that morning on 1/01/10 by Jonathan Mane and Robin John Anan between 8:00am and 9:00am to the defendant's premises. It is also clear from the evidence in court from both the Police witnesses and that of the defendant firstly, that while the altercation between the defendant and complainant was occurring the only people present were the family of the defendant, Jonathan and Robin and secondly that after the defendant had removed the complainant from his premises, a group of men then appeared outside the defendant's premises and then proceeded to assault Bill and Collin. The defendant said in evidence in chief that both Robin and Jonathan were part of this group of men. Delmah in her evidence in chief said the complainant, Jonathan and Robin were part of this group of men and this differs from what the defendant said in that she now includes the complainant. Just prior to this Delmah also said in her evidence that as the defendant was pushing the complainant out of his premises Jonathan and Robin came in and pulled her out, and whether her father had hit her or not she wouldn't know. From this part of her evidence I infer that she did not know if the defendant had hit the complainant or not because she could not see from her vantage point. Therefore it follows that if she could not see this, she also would not be able to see who was part of this group of men, and indeed logic and common sense dictate this to be. I accept the accounts given by the complainant and Jonathan as being more truthful for the reason that they are logical and not nonsensical in nature. I find that the complainant by the time she was helped away by Jonathan and Robin had been punched, kicked, her neck stepped on and been thrown onto a cactus plant and in no way physically able to join in any fight. I find therefore that neither herself nor Jonathan or Robin were part of this group of persons who attacked Bill and Collin.
I answer this question in the negative; I find that the complainant was not part of the group of men who attacked Bill and Collin.
(e). On how many occasions did the defendant assault the complainant?
From the evidence adduced to this court I find that:-
(a) the defendant firstly assaulted the complainant in his premises; and
(b) secondly, the defendant assaulted the complainant on the road outside the entrance to his premises; and
(c) thirdly, the defendant assaulted the complainant after the group of men had assaulted Bill Bira and Collin Aimbamop in an area away from his premises.
APPLICATION OF ISSUES OF LAW TO THE FINDINGS
76. I will now apply the issues of law to those findings.
77. The issues of law that arise in the present case therefore are:-
(a). Did the defendant directly apply force of some kind to the person of the complainant? If yes, the first element of unlawful assault is established. If no, he must be found not guilty of unlawful assault.
(b). Did the complainant consent to what the defendant did? If yes, he must be found not guilty of unlawful assault. If no, then the second element of unlawful assault is established.
(c). Does the defence of provocation apply in this case? If yes, he must be found not guilty of unlawful assault. If no, then he must be found guilty of unlawful assault.
DID THE DEFENDANT DIRECTLY APPLY FORCE OF SOME KIND TO THE PERSON OF THE COMPLAINANT?
78. The defendant by raising the defence of provocation has conceded to this issue. I am therefore satisfied beyond reasonable doubt that the defendant applied force of some kind to the person of the complainant.
DID THE COMPLAINANT CONSENT TO WHAT THE DEFENDANT DID?
79. There is sufficient evidence before this court and I find on this basis that the complainant did not consent to what the defendant did to her.
DOES THE DEFENCE OF PROVOCATION APPLY IN THIS CASE?
80.The Supreme Court in the Reference No 6 of 1984; Re Provocation and Summary Offences Act 1977, Section 6 [4] provided that the defence of provocation under the Criminal Code is applicable and available to the charge of unlawful assault under Section 6 of the Summary Offences Act 1977
81. This court will now consider whether the defence of provocation applies in this case.
82. Sufficient evidence has been adduced to this Court for the defendant to legitimately raise provocation as a defence. The burden of proof now rests with the prosecution to prove beyond reasonable doubt that one or more of the elements of the defence did not exist.
83.If a person is provoked into assaulting another person or is provoked into committing an offence which involves an assault, he may be excused from criminal responsibility as a result of that provocation. Two sections of the Criminal Code are pertinent to the resolution of this issue, and they are Sections 266 and 267. Section 266 defines provocation while Section 267 states the conditions which must be met for the defense to succeed
266. PROVOCATION.
(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done–
(a) to an ordinary person; or
(b) in the presence of an ordinary person to another person–
(i) who is under his immediate care; or
(ii) to whom he stands–
(A) in a conjugal, parental, filial or fraternal relationship; or
(B) in the relation of master or servant,
to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.
(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.
(3) A lawful act is not provocation to any person for an assault.
(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.
267. DEFENCE OF PROVOCATION.
(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he–
(a) is deprived by the provocation of the power of self-control; and
(b) acts on it on the sudden and before there is time for his passion to cool,
if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2) Any question, whether or not–
(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
(c) any force used is disproportionate to the provocation,
is a question of fact.
84. Therefore the questions to be asked in this matter which highlight this defence are:-
1. Was the defendant deprived of the power of self control by the provocation at the time of assault?
2. Did the defendant act on the provocation on the sudden and before there was time for his passion i.e
(a). did the complainant do a wrongful act or offer an insult
(b). was her act or insult likely to cause an ordinary person to lose the power of self control?
(c). was her act or insult likely to induce an ordinary person to stab her in the way the defendant did?
3. did the defendant assault the complainant before there was time for his passion to cool?
85. The burden is on the prosecution to prove that the answer to one or more of these questions is, no. If it cannot do this, all elements are presumed proven and the defence of provocation will operate (R v Nikola Kristeff (1967) No 445)
Question 1. .Was the defendant deprived of the power of self control by the provocation at the time of assault?
86. With regards to Question 1 the test is whether or not the defendant's anger had caused him to cease to be the master of his understanding.
87.I consider Frank Bira's actions on the 1/01/10 to be more in the spirit of vindictiveness than a loss of self control while hot with anger. The law is settled on this point, namely that mere anger is not enough. There must be passion or loss of control, taking the place of reason. (See Regina v Rumints – Gorok [5] at 85 and R v Oa [6]
88.I do not consider that the complainant's act was sudden or had elements that would surprise or shock the defendant because as he told the court in his own words that he had had a past altercation with the complainant when he removed her from his house whilst she had lived there for reasons of being disrespectful. The defendant did not elaborate on the meaning of this 'disrespect' by the complainant but I can only safely infer that whatever it was it grave enough for the defendant to remove her his only sister in law from his house. I consider the complainant's verbal insistence in seeing her sister, the defendant's wife as nothing more than a bad case of pestering and not enough to cause spontaneous unreasoning action. I consider Frank assaulted Shirley in spiteful revenge and certainly not from a loss of self control. My view of the defendant's actions is borne out by the manner in which he removed her from his premises which I consider to have been deliberate and callous. From the moment Frank Bira walked out of his house onto the verandah he did not want to see Shirley. The reasons he gave for not allowing her to see his wife is rather mundane and lame. So when she did not make a move to leave, he decided to make her leave. He walked down the steps from the verandah, punched her to the ground, then proceeded to drag her out of his premises by the collar of her shirt, in the process throwing her onto the cactus plant, then continued to drag her by the collar of her shirt, dumping her on the road, then proceeding to kick and punch her again there and stepped on the right side of her neck. The defendant was angered by Shirley's persistence but I find in the circumstances that passion never replaced reason. I find that his anger had not caused him to cease to be a master of his understanding or in the words of section 266 to lose the power of self control. I answer Question 1 in the negative and as a consequence the defence of provocation does not operate here but for the purposes of completeness the other issues will be addressed.
Question 2 (a) did the complainant do a wrongful act or offer an insult.
89.Firstly, for the reasons given for the answers to 'contentious factual issues No 1 and 5 I find that the prosecution has proven that the complainant did not do a wrongful act in relation to the first assault. Secondly, the actions of Frank of dumping Shirley on the road outside the entrance to his premises and kicking and hitting her was as I find on the evidence, devoid of any wrongful act or insult by her. Thirdly, Bill Bira and Collin Aibamop were assaulted by a group of men after the victim had already left the scene. There was no evidence provided by the defendant of her inciting these men to assault them directly or indirectly or verbally or by physical presence. The defendant says when he saw his son Bill and Collin grievously injured he went after the victim and again assaulted her because he says she was the trouble maker. I find this hard to accept given the absence of evidence of any nexus between the attack on Bill and Collin and the first and second assaults on Shirley by the defendant and his son Bill. The victim was already badly assaulted by the victim to the extent that she had to be assisted away to her home by Jonathan and Robin. If the victim had incited the third incident the defendant would have reason to raise the defence of provocation but as I have intimated there is no evidence produced in this court by the defendant showing this to be the case. He had already badly assaulted the victim and there was no need for any further assault on her.
90.I find that the defendant may have been upset by the assault on Bill and Collin by this group of men, but I also find that he directed his retaliatory actions at the wrong party. Had he directed his assault on this group of men who had assaulted Bill and Colin in his presence, it would have made common sense. In Papua New Guinea today relatives, tribesmen and friends will not stand idle and watch a relative being assaulted. What transpired this day I find is that the defendant knew exactly what he was doing. In other words, he was in control of his passion when he made the decision not to attack the logical target, the group of men who were assaulting his son but an innocent and softer target the complainant who had already left the scene. This was an action of a person who though very angry had not lost the power of self control and reasoning ability.
91. In relation to Question 2a I find that the prosecution has proven that the complainant did not do a wrongful act
Question 2 (b) and 2 (c)
92.The test to be applied here in relation to both Questions 2(b) and 2(c) is an objective one as a result of the inclusion of the term 'ordinary person' in both of them.. The ordinary person means an ordinary person in the environment and culture of the defendant. (See Hamo:Regina v [7].These two questions are not about whether the complainant's act or insult was likely to cause an ordinary person to lose the power of self control. Rather they are about whether the nature of the wrongful act was likely to deprive an ordinary Odd villager living in Odd village of the power of self control and induce him to assault the complainant in the way he did (See The State v Inawai Moroi [8], National Court, Kearney DCJ). I am satisfied that the prosecution has proven beyond reasonable doubt that an ordinary person would not have reacted in the way the defendant did. An ordinary person faced with a vocal and persistent sister in law would not have reacted in such a vindictive and callous manner that he did. As a consequence I find that the prosecution has proven beyond reasonable doubt that was no sudden provocation.
Question 3 .did the defendant assault the complainant before there was time for his passion to cool?
93. In relation to Question 3 I consider that the prosecution has negated this element on the requisite standard of proof.
94.I find that the prosecution has discharged the onus placed on it by disproving all the elements of the defence of provocation. The prosecution was required to disprove only one or more of the elements In this matter the prosecution disproved the first element beyond reasonable doubt and consequently the defence of provocation that was raised by the defendant has not been made out on the evidence. I find that Frank Bira acted without any legal provocation.
DETERMINATION OF THE CHARGE
95. I am satisfied therefore that the prosecution has proven beyond reasonable doubt that the defendant unlawfully assaulted the complainant between 8:00am and 9:00am on the 1/01/10.
VERDICT
96. The order of the District Court is that Frank Bira is convicted of the unlawful assault of Shirley Wame.
Police Prosecution for the Police
Defendant in Person
[3] (16/10/010 N22
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