Police v Mori [2015] PGDC 21; DC3056 (24 April 2015)

DC3056
PAPUA NEW GUINEA

IN THE DISTRICT COURT SITTING

IN ITS CRIMINAL (SUMMARY) JURISDICTION

DC 108, 109, 110, 111, 112, 113, 114/2015

BETWEEN

POLICE
-Informant-

AND

BATA MORI
-Defendant-

Kundiawa: B. Tanewan

2015: 24^th April

RULING ON VERDICT

1. INTRODUCTION

The Defendant is charged with seven (7) different offences under the Summary Offences Act. The Defendant Bata Mori is charged for one (1) count of Unlawfully On Premises under s.20 , four (4) counts of use of Insulting Words under s.7, one (10 Count of destroying properties under s.47 (1) and one (1) count of unlawful assault under s.6 of the Summary Offences Act.

Upon arraignment the Defendant pleaded not guilty to all the charges and raised general denial as a defence hence trial was conducted and here is the Court’s ruling on verdict.
2. THE BRIEF FACTS

The alleged facts are that on 23^rd December 2014, the Defendant was drunk at Chuavegate; he was also in the company of about four other boys. He went into the premises of Pastor George Gomea with his consent and swore at the employees of his store, chased away a lady who was selling sausages and assaulted her without good reason and destroyed all her goods. It is further alleged that he swore at four different victims saying “yukaikaikan , pipiameri, rubbish nakam drink kokwarablong mi”

The Defendant was then arrested formal charged and released on K400 police bail.

3. THE ISSUES.

The relevant issue in this case for consideration by the court is;

Whether or not there is evidence beyond reasonable doubt by the Prosecution to render a conviction against the Defendant.

4. THE EVIDENCE

During trial the prosecution called five (5) witnesses who gave sworn oral evidence and their evidence is summarized as follows;

(i) PASTOR GEORGE GOMEA

On that day he met the Defendant on his way to the bus stop at the Okuk Highway and he met the Defendant. The Defendant was holding a bottle of beer and in the company of 3 other youths. A few minutes later he received a call from his mobile phone so he has to go back to his premises.

When he arrived he saw his sister crying over all her market things were all over the place. He said this is not the first time such incident happened and the Defendant was his in-law who got married to his daughter. He also said they had separated and the Defendant owed him and should respect him, as he is looking after the defendant’s son.

The witness upon cross – examination said he was not actually present when the Defendant insulted/assaulted the victims. He was told the story by his employees.

(ii) MARLEY SONOWAI

Her evidence is that she was in the stationary shop with her child when the Defendant went in with some boys pointed at her and said, “kaikaikan, pipiarabismeri, pikininiblo mi yuplaholim”. She said he was scared and felt hopeless so had to close the stationary counter and leave.

(iii) JOHN ROBERT KOM

He saw Defendant with 5 others approach the store, they were drunk. He was 5 metres away. He saw and heard Defendant swore at Sandy Gomia. “Kaikaikanpipiameri” and with ½ SP bottle swung and missed Sandy then with the help from his boys destroyed cooked sausages and buns. Sandy in fear ran for her life.

Then Defendant went to Marley at Stationary shop, tried to punch her, swore at her “kaikaikanpipiameri”, she ran away and closed counter. From where he was he saw Defendant went into the shop and was swearing. Defendants then went to the back and harassed the security guards.

(iv) SANDY GOMIA

Her evidence in Summary was that the Defendant was with 4 others – she was doing her marketing. Defendant approached her swore at her saying “kaikaikanyupealpipiarabis” then swung a bottle of beer at her she ran towards him and held onto him.

(v) STEVEN MORI

This is not the first time. He said Defendant swore at him and Steven saying, “yutupela drink kokwarablo mi”. All these happened when he was right infront of the store.

In defence, the defendant called three (3) witnesses who also gave sworn oral evidence in court. The defence witnesses gave their evidence as follows;

(i) BATA MORI (Defendant)

He said he was frustrated because they did not release his son so he went in the door was open. He said he did not swear, at one particular person but all of them in general. He admitted he was drunk at that time.

(ii) MRS. TIMOI TAKAI

She said she was at the gate and saw Defendant argued with Sandy Gomia. She told Sandy to pack her things and leave. Boys came and pulled Bata and they went away.

(iii) OWA JOE

He said, Pastor was not there at that time. He swore Defendant at every one. Sandy panicked and packed all her things. He pulled Defendant and they went away.

5. ANALYSIS OF EVIDENCE
   
   1. The court’s view is that the Defendants’ witnesses were vague in their evidence, ambiguous and evasive. The defendant’s evidence in particular is evasive at cross-examination. He also tries to justify his doing with the fact that he did all this because he was not allowed access to his son.

His two (2) other witnesses were ambiguous and not detailed in their evidence and all their evidence lacks corroboration and so cannot hold together.They were all untruthful and unreliable witnesses.

2. The Prosecution witnesses gave detailed, thorough and corroborative evidence. Their evidence supports each other and makes a lot of sense. They gave detailed and chronological accounts of events. The Court finds their evidence to be believable. They are all reliable and truthful witnesses.
   

For clarity purposes on the charge of unlawful assault, the evidence is clear that the defendant did not actually or physically touched or hit the victim, Sandy Gomea. However s.7 (2) (b) is sufficient in that definition of assault includes“bodily gestures”. The court has no doubt in its mind that the defendant actually threw a bottle of beer and it broke at a fence just within close proximity to where the victim Sandy Gomea was doing her marketing and she was scare and ran away from her sitting place.

On the contrary, there is doubt in the Court’s mind in relation to the defendant actually destroying the victim’s property or “actusrea”. There is some evidence that the defendant created the environment conducive for the commission of the offence, but no one else was charged so as to have the court convict him of abetting or aiding.

6. APPLICATION OF LAW
   

Given the above findings by the Court, the Court is of the view that there is no legal defence available to the Defendant in relation of all charges, except for the charged of Destroying Properties under Section 47 of the Summary Offences Act.

The Court finds that even the Defendant created the circumstances conducive for the others to commit that particular offences, it will be unsafe to convict on that alone.

The Defendant can only be found guilty of the offence under Section 47 if a principal offender is charged and convicted, then he can be safely convicted as he can be taken as he was aided or abetted the other person to commit the offence.

7. CONCLUSION

Based on the foregoing discussions and reasoning, the Court make the following finding as summarized below;

No.	Charge	Verdict
1	Unlawfully on Premises (s.20 of SOA) – of George Gomea	Guilty and convicted as charged
2	Insulting Words (s.7 of SOA) towards Marley Sinowai)	Guilty and convicted as charged
3	Insulting Words (s.7 of SOA) towards - John Robert Kom	Guilty and convicted as charged
4	Destroying Properties (s.47 (1) SOA) – of Sandy Gomea	Not guilty as so acquitted of the Charged
5	Unlawful Assault (s.6 of SOA) - of Sandy Gomea(Bodily Gestures)	Guilty and convicted as charged
6	Insulting Words (s.7 of SOA) - against Sandy Gomia	Guilty and convicted as charged
7	Insulting Words (s.7 of SOA) – against Steven Mori	Guilty and convicted as charged

In conclusion, the Court finds that the prosecution has proven its case beyond reasonable doubt on the one (1) charge of Unlawful Entering Premises under S.20, four charges of Insulting Words under S.7 and one (1) count of Unlawful Assault under S.6. (3)of the Summary Offence Act.

The Court further finds that the prosecution did not negate the defence of “actual participation” or issue of actusreawas not proven as raised by the Defendant on one (1) count of Destroying Properties under Section 47 of the Summary Offence.

8. COURT ORDERS

Therefore the Court orders that;

1. The Defendant Bata Mori is found guilty of one (1) count of Unlawfully on Premises contrary to S.20 of Summary Offence Act and I so convict him.
   
2. The Defendant Bata Mori is found guilty and convicted of four (4) counts of Use of Insulting Words contrary to S.7 of Summary Offence Act.
   
3. The Defendant Bata Mori is found guilty and convicted of one (1) count of Unlawful Assault contrary of S.6.(3) of Summary Offence Act.
   
4. The Defendant Bata Mori is found not guilty and I so acquit him of the charge of Destroying Properties contrary to Section 37 of the Summary Offence Act.
   
5. CBC shall file a PSR by or before 06^th May 2015 at 9.30 am.
   
6. Ruling on Sentence is reserved until 16^th May 2015.
   
7. Defendant’s bail further extended.
   

Orders accordingly,

______________

B. TANEWAN

Presiding Magistrate