Police v Kuna [2015] PGDC 6; DC2074 (11 November 2015)

DC2074

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.195 OF 2015

BETWEEN:

POLICE

-Informant-

AND:

RAFOL KUNA

-Defendant-

Boroko - NCD: A. Kalandi

2015: 11^thNovember 2015

DECISION ON VERDICT

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part iii, Protection of Persons, Section 6(3) Unlawful Assault – Trial conducted on plea of not guilty – prosecution to establish elements of assault

Counsel: Constable MalaniUwano– Police Prosecution

Mr. Rafol Kuna – In Persons

Laws:

1. Summary Offences Act
   

Cases cited
Nil

KALANDI. A. DCM: The accused was charged for one count of unlawful assault contrary to Section 6(3) of the Summary Offence Act. The charge reads; The Defendant did unlawfully assault another person, namely Pastor Benjamin Yapao of Cephas Foursquare Church thereby contravening Section 6(3) of the Summary Offence Act by punching him several times on his face.

POLICE BRIEF

The Police allege that the accused Rafol Kuna on the 24^th of January 2015 unlawfully assaulted one Pastor Benjamin Yapao at Taison Police Barracks, Gerehu, National Capital District, by punching him several times on his face.

The accused pleaded not guilty to the charge and so a trial was conducted. The prosecution called three witnesses that are inclusive of the victim and the Defendant called four witnesses inclusive of the accused himself.

THE ELEMENTS OF THE CHARGE

For a conviction to be entered against the Defendant, the elements of the offence must be set out by the prosecution.

Thus, the elements of unlawful assault per Section 6(3) of the Summary Offence Act are;

(i) A personunlawfully assaulted by application of force
(ii) Another person

ISSUES

The issue for the Court to determine is whether or not the Defendant unlawfully assaulted the victim, one Pastor Benjamin Yapao.

EVIDENCE

Police Evidence

1^st Witness – the victim

The victim Benjamin Yapao said on the 24^th January 2015 at around 7.00am, he went to visithis church member Mr. John Taru, a policeman at Taison Police Barracks. However, he and his family were still sleeping so he reversed his car and went into the Defendant’s drive way into his yard to turn and go back when the accused who is a policeman came to him and assaulted him.

The accused came toward him and swore at him saying, “fuck you” (which was confirmed by the accused in his evidence) and punched him when he was still in his car. He then opened his car door and came out and the accused punched him on his face again and he fell to the ground. Two other policemen who were drinking beer with him there also came and kicked and punched me repeatedly.

He said he regained his strength and ran toward John Taru’s house and went to the veranda of his house, but the accused and the two others identified as Alo and Alfred followed him to the veranda of John Taru’s house and again assaulted him by punching and kicking him all over his body. As a result of the noise from John Taru’s house, he and his family waked up and realised what was happening and stopped them.

The Medical Report was tendered without objection as Exhibit P1. The Report sets out the nature of injuries inflicted on the victim.

In cross examination the Defendant asked;

Q You hit me and I fell to the ground

A No, I never hit you or touched you

Q I wanted to punch you but you lifted me and threw me to the ground

A No

Q When you threw me to the ground, Kelly Ruling threw SP can at you

A No I never hit you

Q Kelly Ruling then threw 3-4 punches at you

A Yes

Q You ran to John Taru’s house and his wife stopped you

1. No, you were hitting me at the veranda of his house and JohnTtaru and his wife came out

2^nd Witness John Taru

This witness is a Senior Sergeant and he tells of how the accused and his colleagues came up to the veranda of his house and assaulted the victim and how he managed to stop them.

Mr Taru said he and his family were awaken by noise coming from the veranda of his house while they were still sleeping at around 7.00am on the 24^th January 2015. He waked up and when he opened the door to the veranda, he saw the accused and the four others fighting the victim. He told them to stop many times, but they did not listen to him. In the process one of his louvers got broken and as a result of that they stopped and went back.

In cross examination when the accused asked;

Q I was at your steps and you stopped me

A No, you were at the veranda

3^rd Witness Patricia AmonTaru

This witness is the wife of John Taru. She tells of what happened at the veranda of her house.

She said, on the 24^th January 2015, at around 6.30am-7.00am, while still sleeping, she heard noise of many people coming to the veranda. She opened the window and saw many men coming up the veranda. She came out of the door and saw the accused and the two (2) others later confirmed as policemen were assaulting the victim on her veranda.

Defence Evidence

1^st Witness Rafol Kuna (accused)

The accused said, on the said date and time, he was drinking beer with his colleagues and the victim drove to John Taru’s house and when realised they were still sleeping, he drove out and droved to his drive way and stopped. He though the victim was trying to turn, but didn’t. He went and approached him and the victim said he was turning, so I said, “fuck” and went back.

The victim didn’t go, he came out of his came and was standing looking straight at him. He went back and asked what was going on and the victim replied he was watching them doing the good things. He did not feel good so ran toward him to fight him, but he first punched me and I fell to the cement. Before, I could get up to punch him, he lifted me and threw me to the tar and I landed on my buttocks.

One of the policemen, one Kelly Ruling saw this and threw a beer tin at the victim and threw some punches on him.

The victim then ran toward John Taru’s house, I followed him but John Taru’s wife called out not to hurt him, this time the victim was already locked up inside their house and he walked back.

2^nd Witness Jeremiah Eremah

This witness said, on the same time and date he went to chew buai at the front of the accused house and saw the event taking place. This witness gave the very same evidence the accused gave.

He further added that the victim then ran toward John Taru’s house and they ran after him to his house and John Taru came and stopped them at the veranda of his house.

3^rd Witness Simson Alo

This witness is one of those policemen who were in the drinking company with the accused.

This witness said, while they were drinking at the accused house, a car stopped at the accused drive way, the accused went to see the victim and again the second time. We were drinking under the house so we heard noise and saw the victim hitting the accused and throwing him to the ground.

We came out of the house and one of the policemen threw a beer tin at the victim and threw some punches on him. Later, the victim ran to another neighbour’s house and we chased him, but went to that house, locked the door and stayed inside. We didn’t assault him, we came back, accused was bleeding, I went away.

4^th Witness Wendy Kuna

This witness is the spouse of the accused. She said she was sitting on the veranda of her house watching the accused and the others drinking underneath the house. The victim stopped at John Taru’s drive way and sounded the horn, but they were still sleeping so he drove to the accused drive way and stopped looking at them drinking. She was with the accused and the policemen telling stories underneath the house. The accused walked toward the victim, but came back and walked to the victim again. She did not know what happened, but the Defendant was hit by the victim and he fell to the ground. When the accused wanted to get up and hit the victim, the accused was pulled by his legs and put to the ground.

Another policeman went and threw a can beer at the victim and punched him several times. The victim then ran to John Taru’s house and hide there. The policemen wanted to go to his house, but John Taru came and stopped them.

Court Question

17. Witness, you said you were at the veranda of your house, and again said underneath the house when the incident happened, where actually were you?

A At the steps of the house

SUBMISSION

As the accused was unrepresented, submissions were not made, the Court made its findings as per the evidence before the Court.

ASSESSMENT OF EVIDENCE

I have carefully observed the demeanour of all witnesses and I was impressed with the prosecution witnesses. The victim was a senior pastor and his evidence was very truthful. In cross examination the accused put questions to shift the actions of assault on the victim, but he maintained what was said in examination in chief. The evidence of the victim is also confirmed and corroborated by the Medical Report tendered as exhibit for the prosecution. The witness statements also corroborated the evidence of the victim. One of the witnesses, one John Taru was a senior police sergeant and his evidence was firm. The Defence evidence, evidence of one Jeremiah Eremah contradicts the evidence of the defence that they never attacked the victim on the veranda of Mr.Taru’s house. He confirms the prosecution evidence that they ran after the victim to the veranda of Mr.Taru’s house. This is where the victim was again assaulted.

The evidence of the accused and the witnesses did not impress me as truthful witnesses. The accused evidence was a means of shifting the action of the assault on the victim and the examination were geared toward that shift. The questions and the story told did not fit in well with any sense of logic and common sense against a Senior Pastor of the Gerehu Four Square Church assaulting a senior policeman for no reason.

The accused evidence that the accused assaulted him for no reason is irrational and could not be believed. There is no explanation as to why a Pastor would possibly attack and assault a senior policeman with his colleagues in the sense of drinking. Policemen are highly respected by the community and for a pastor to assault without reasons are illogical. A person in the normal sense of mind cannot assault another person for no reasons, unless one is mentally impaired or the sense of normality is missing. The victim being a senior pastor, I think was not out of his mind to assault the accused who is a senior police officer for no reason.

The witness evidence of the Defence also can’t be trusted and can’t convince the Court as the evidence of the witnesses were contradictory and evasive, were not credible and reliable.

The Defence evidence was complete denial of any assault of the victim, there was no explanation as to why a victim of a Christian standing possibly could assault a policeman of senior standing in the community. The accused evidence that the victim was standing at his drive way watching them drinking and again assaulting him is too remote if the accused was sliding around for any possible defence for provocation. This defence can’t be available there is complete denial of assaulting the victim.

The main consideration for this Court now is to determine as to whether the accused is guilty of the charge against him is the establishment of the elements of the offence. The essential elements of the offence must be established by the prosecution by way of the prosecution evidence before the Court.

ELEMENTS OF THE OFFENCE

For a verdict to be entered the Prosecution must satisfy to the satisfaction of the Court that the elements of the offence are set out as per the evidence. For purposes of this hearing, the elements of the charge are as set out hereunder;

(a) That the Defendants unlawfully
(b) Assaulted the victim by inflicting injuries on his person

The prosecution evidence established that the accused was the one that assaulted the victim to the extent of the injuries sustained. By virtue of s.6(3) of the Summary Offence Act, the accused assaulted the victim by attacking and inflicting injuries on his person. The victim’s action triggered the other policemen who contributed and assaultedthe victim (who have not also been charged, but it’s not for this Court to infer) for no genuine reason. If the victim had not ran away to seek refuge and where Mr.Taru and his wife had not come to his aid, he would have been severely injured as the accused and his team even followed him to the premises of another senior sergeant without even respect for him and again assaulted the victim at his house. I therefore have no doubt that the elements of the charge have been established and that a verdict of guilty is returned against the accused.

For the Prosecution: Ms. Malanie Uwano - Police Prosecutor

Defendant: In Person