Police v Tura [2016] PGDC 19; DC2083 (29 September 2016)

DC2083

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.3258 OF 2016

BETWEEN:

POLICE

-Informant-

AND:

MARYANNE EMMA TURA

-Defendant-

Boroko - NCD: A. Kalandi

2016: 29^thSeptember 2016

DECISION ON VERDICT

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part v, Protection of property Section 47(2) Damaging property, Part iii, Protection of Persons, Section 6(3) Unlawful Assault, Protection of persons-Section 7(b) Provoking breach of the peace.

Counsels:Constable Regina Killip– Police Prosecution

Ms. Maryanne Emma Tura– In Persons

Laws:

1. Summary Ejectment Act –Sections 6(3), 7(b) and 47(2)

Cases cited

1. Sabadi v Police [2002] PNGLR 3
   

KALANDI. A. DCM: The accused was charged withfour counts on four separate information of which the information were substantially arising out of the same act or omission from the same set of facts of the event unfolding on the same day at the same location on the part of the defendant. Thus the defendant was charged on count one for damaging property contrary to Section 47(2), count two on unlawful assault contrary to Section 6(3), counts three and four on using insulting words and threatening words contrary to Section 7(b) of the Summary Offences Act. The defendant was charged on counts one, two and three are as of the same acts and omissions on the victim Sheena Awaita and count four on another person, but as a result of the same act at the same time and location.

POLICE BRIEF

The Police allege that the accused, Maryanne Emma Tura on the 16^th April 2016, went to Bomana Police Barracks, the residence of Constable David Awaita who is her legal husband and the defacto husband of the victim. It’s alleged she then screamed asking where her girls were and broke the louver blade of the house, assaulted the victim with an iron rod and threatened to break her legs if she does not pack up her things and leave the house and go toWedau, her village. It’s also alleged that the defendant insulted another person, one Doris Loya calling her a bloody grownup.

The Defendant pleaded guilty to the count on damaging property and pleaded not guilty to the other three counts saying she did not do as alleged and so a trial was conducted. The submission on sentence on the guilty plea was reserved to conduct the trial of the other three counts she pleaded not guilty. The prosecution called four witnesses that is inclusive of the victim and the defence called two witnesses inclusive of the accused herself.

THE ELEMENTS OF THE CHARGE

For a conviction to be entered against the Defendants, the elements of the offence must be set out by the police. Hence, the elements of each of the offences are set out hereunder;

The elements of the charge for unlawful assault per Section 6(3) of the Summary Offence Act are;

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

is deemed to assault that person

The elements for the charge on damaging property per Section 47(2) are;

(i) A person, who without reasonable excuse
(ii) Destroys, damages or injures any property
(iii) Belonging to another person

is guilty of an offence the

The elements of the charges for using insulting words and threatening words per Section 7(b) are;

(i) A person who
(ii) Uses threatening, abusive or insulting words
(iii) With intend to provoke a breach of the peace or a breach of the peace is likely to take place

is guilty of an offence

ISSUES

As the defendant was charged with four different charges on four separate information with only one statement of facts, the Court will be critically determining the following issues;

1. Whether or not one Statement of Facts can be used against the defendant on all the charges of the separate information.
2. Whether or not the elements of each charge has been established by the same statement of facts.

EVIDENCE

Police Evidence

1^st Witness – Sheena Awaita -the victim

The victim is the defacto wife of Senior Constable David Awaita. She said on the 16^th April 2016, a Saturday, she was watching movies in the house and heard the window breaking and heard the defendant screaming saying where her daughters were. She said when she opened the window and looked outside, saw the defendant and replied the father took them away. She said, the defendant then broke the louver blades with an iron rod. She said, she got the garden rake and ran out of the house. The defendant then threw the iron rod on the left side of her belly and the second time hit her again and she said she ran to the road.

She said, the defendant then poked her on the left side of her belly and hit her on the head with the iron rod. Then the next neighbour went and stopped the defendant from hitting her. The husband, Constable David Awaita then came and took her to the hospital where she was admitted for a week.

She further said she did not receive any injuries. Five louver blades were broken and she said the defendant told her to pack her things and go to Wedau, Milne Bay Province and to go and burn down the house.

In cross examination, the defendant asked she did not hit her on the head and the victim said, the defendant did hit her on the head. When the Court asked why she did not retaliate, she said she was six months pregnant and was protecting the foetus and when asked whether the baby was delivered in good health, she said yes.

2^nd Witness- Magdalene Wada

This witness said on the 16^th April 2016 at around 5.30pm she was watching TV in the house. Her house was next to the victim’s house at the Bomana Police College. She said she heard noise outside the house and the noise continued, but she didn’t go at first. She said, later when she came out she saw the victim running to the road and saw the defendant running after the victim with an iron rod. The defendant lifted the iron rod and swung at the left side of the victim’s belly. She said, she though the second swing was at her back and when the defendant swung again she said she went and stood between the defendant and the victim. She said, when she blocked the defendant from hitting the victim, located a gap and poked the victim on her side with the iron. She further said, the defendant avoided her and hit the victim on the head with the iron rod and said many things, but the victim didn’t say anything. She said the defendant also told the victim to go to Wedau as she will come and check on Monday and threatened to break her legs if she did not move away.

In cross examination, when the defendant asked as she was in between them did not see her hitting the victim and she said she didn’t see but heard the noise. When the Court asked the witness whether she saw any injuries being sustained by the victim, she said, see did not see any injuries on the victim as her head was covered with hair.

3^rd Witness – MacklynYobuna

This witness said her house was the third house from the victim’s house. There is another house in between her house and that of the victim. She said, on the 116^th April 2016, around 5.30pm she was raking the front of her house and noise coming from the victim’s house. She said, she looked and saw the defendant braking the louver blades of the victim’s house. She said, the second wife was inside the house so she ran out of the house and defendant swung iron rod on the victim’s legs and again three more times and victim ran to the road.

When asked in cross examination that her house was some six metres away and how she saw what happened, she said, she would see the door of the victim’s house. When the Court asked from which location of her house she could see the front of the victim’s house, she said from the front where she was raking.

4^thWitness – DalusillaLoman

This witness said, on the 16^th April 2016 at around 5.30pm she was cooking with her family in the house. She heard glass breaking so ran out of the house and saw defendant breaking the glass with an iron rod, one metre long. When the defendant was breaking the glass saw the victim ran out of her house and ran to the road. The defendant followed her and hit the victim with the iron on the lawn. The victim ran to the road and the 1^st witness, Magdalene went and the victim held her around her waist. The defendant then used the iron to poke the victim with the iron on the side. She said, the defendant then told the victim to go to Wedau and when she hit victim on the head, she went inside.

When the Court asked whether she actually saw the defendant hitting the victim on the head, she said, yes, the defendant lifted the iron and hit her.

Defence Evidence

1^st Witness – Maryanne Emma Tura -Accused

The defendant said, at round 3.00pm on the 16^th April 2016, Constable David Awaita (her legal spouse) came to her residence at Joyce Bay, Kilakila to deliver the maintenance of the two girls as they were separated. The Family Court Order allowed him for visitation and not to take them away. At around 5.00pm, she looked for the girls, but they were not around and some neighbours told her that the father took the girls away. She said she then rang the father of the girls, Constable Awaita and he said they were at Bomana so accompanied by Joyce my sister went to Bomana to bring the girls back at around 6.00pm. When she got to the house, she did not know that Sheena Awaita (victim) was in the house, got an iron rod and broke a louver blade of the house and called where her girls were.

The victim called from inside the house and said the father took them down and came out with a garden rake and she used the iron rod to hit the rake and both of them fell to the ground. The first witness for the police then went and stopped them. She said, she then threw hand at Sheena and they started arguing and fighting and Constable Await came in his police car. They then ran away.

In cross examination, the following questions were asked;

Q. You were frustrated so you would do anything?

A. Yes, I was provoked

Q. So you threw the iron rod at Sheena when she came out of the house?

A. Yes

2^nd Witness – Joyce Oma

This witness said, on the 16^th April 2016, Maryanne went and picked her in her house to check on her girls so they went to Bomana. When they went to the house, she stayed on the road and the defendant went to the house and called where are my girls and the victim who was inside replied in saying the father took them down.

She said, the defendant then got an iron rod and broke the window and the victim came out with a garden rake to defend herself. The defendant then chased the victim and they both ran and fell to the ground. The defendant did not hit the victim with the iron.

Then they came to the main road and were arguing and their neighbours went and stopped them.the defendant did not hit the victim, they were only arguing and David Awaita came in his car and the defendant asked where the girls were and he said he already dropped them.

SUBMISSION

As the Defendant wasunrepresented, submissions were not made. The Court will make its findings as per the evidence before it and give its Ruling.

ASSESSMENT OF EVIDENCE

The defendant was charged on four different charged by lying of four different information. The defendant pleaded guilty to the charge of damaging properties and pleaded not guilty to the other three charges, that’s unlawful assault, use of insulting words and threatening words.The District Court Act, per Section 29,an information must be for only one matter. This Section 29 DCA is in the following terms;

29 Information to be for one matter only

An information shall be for one matter only, except that-

(a) In the case of indictable offences, if the matters of the information are such that they may be charged one indictment; and
(b) In other cases, if the matters of the information are substantially of the same act of omission on the part of the defendant,

those matters may be joined in the same information.

This section is very specific, except the exceptions that a matter can be by way of indictment. That is in the event the matter is an indictable offence. In this court dealing with summary offences, this is not applicable here. However, the exception where the matters of the information are substantially arising of the same act or omission on the part of the defendant, then matters can be joined in the same information. Hence, there irregularity or defect in the laying of the four charges on four separate information.

In the case, Sabadi v Police [2002] PNGLR 3,His HonorLenalia J, in an appeal from the BiallaDistrict Court against conviction and sentence where two charges were laid arising from one set of statements of facts, held among others,

1. The court can accept a single statement of facts for two separate offences arising from the prosecution of a single unlawful purpose.

2. Where the statement of facts, which has been relied on by the court to convict an accused, does not disclose the basic elements of the offence, the court is in error and therefore the convictions must be quashed.

Pertaining to the above, this Court is of the view that there is nothing wrong with the defendant being charged on four separate information. However, it’s very fundamental to understand that each charge has its own elements that needs proof for a conviction to be made. The elements of one offence are not applicable to the other charges even if the defendant has been charged as a result of any same act or omission on the part of the defendant. Thus, where the same statement of facts is used, it must entail all the elements of all the charges.

Charge on Damaging Property

The defendant has pleaded guilty to this charge and I reserved submission on sentence to conduct the trial on the other charges that the defendant pleaded not guilty to, but it has come to the attention of this Court at this stage that something not proper has taken place. On this basis, this Court will also see whether it was proper to take the guilty plea of the defendant as it was.

Thus for the elements of each charge to be present, separate statement of facts ought to presented on each specific charge. Here the same statement of facts was applicable on all the four charges. At the last paragraph of the statement of facts, it asserted that the defendant was charged for three charges or counts; unlawful assault and for two counts for provoking breach of peace. The statement of facts does not say that the defendant was charged for damaging property.

Thus, the charge of damaging property is defective. I am of the view that the charge is defective in the following sense; there is no statement of facts on the charge for damaging property, the statement of facts used by the prosecution was the one for the other three charges. Further, for the charge of damaging propertiesto be established, the elements of the charge must be set out in the information itself. Thus, the elements of damaging propertyper Section 47(2) are;

(i) A person, who without reasonable excuse
(ii) Destroys, damages or injures any property
(iii) Belonging to another person

is guilty of an offence.

The information reads; the defendant did unlawfully damaged the property, namely, House No 56, the property of the State, namely Bomana Police College.

The statement of facts for the other three offences used for purposes of this charge does not reflect the charge as per the information; the charge was in relation to the breaking of a louver blade of the house. Thus, this charge has not properly been set out.

Charge on breach of peace

The defendant was also charged with two charges per Section 7(b) SOA on two separate information; one for threatening words against the victim and the other for insulting words against a third person. In compliance of Section 29 DCA, separate information were presented, and the defendant pleaded not guilty to all three charges.

Charge on insulting words

However, the two charges for unlawful assault and threatening words was against the victim by the defendant, but the charge of insulting words was against a third person and not the victim of the other two charges. Thus, that, other person did notinstitute any complaint and report the matter to the police against the defendant. The defendant was not properly charged for this offence as there was no complainant against her on this charge. The defendant was charged as a result of the insulting words as stipulated in the statement of facts. Though the alleged offence was alleged to be committed by the defendant in the course of effecting the same acts or omissions, the offence was alleged to be committed against a third person and for that element to be established must come with its own statement of facts.

As the third person did not lay the complaint and the defendant arrested and charged on that basis, the defendant has not been accorded the rights under Section 42(2) Constitution. Her rights have been violated. Further as a result of the violation, there was never any statement from the third person for the purposes of the police to be assisted in arresting and charging the defendant.

Thus, this charge cannot stand.

As the defendant pleaded not guilty to the charge of unlawful assault and threatening words against the victim, the trial conducted would go to the extent of establishing guilt or otherwise.

Charge of threatening words

To establish the charge on threatening words, the prosecution must satisfy the Court that the elements of this charge exist. The victim in her evidence said, the defendant told her to pack up her things and go to Wedau, which is in the Milne Bay Province she will burnt down the house. The evidence of one Magdalene Wada says the defendant told the victim to go to Wedau and to come back and check on Monday. These are the evidence that the police relied to establish against the defendant for the charge of threatening words.

The information of this charge is in the following terms;

The defendant used threatening words namely, pack your things and go to Wedau, I’ll come to Wedau and burnt your house, whereby a breach of peace was likely to take place.

The elements of the charge for using threatening words per Section 7(b) are;

(i) A person who
(ii) Uses threatening words
(iii) With intend by which breach of the peace is likely to take place

is guilty of an offence.

The defendant in her evidence said the victim and herself were arguing at the road. Her evidence does not say that she did not say any words of threat, but says they were arguing. Thus, the Court takes it that in the process of the argument, the defendant could have said these words.

From the reading of this charge, I am of the view that a breach of peace is likely to take place where threatening words are used when there is an element of intend to ensure the threatening words are carried out.

The wording of the charge does not correspond with the evidence of the victim and the other police witness. The evidence of the victim basically stipulated that the victim ought to go to Wedau, Milne Bay Province and the defendant to burn down the house and the evidence of Magdalene Wada asserted of the defendant coming back to check on Monday. The information says the defendant to burn down the house in Milne Bay when the victim go there.

There are basically two houses, one the residence at the Bomana Police College and the other at Wedau, Milne Bay. To see which house the defendant was referring to, the intention of the defendant and the possibility of the defendant in uttering the threatening words for a likely would of the breach of the peace was intended must be established.

The house at Bomana Police College is an institutional house and the house at Wedau was in Milne Bay Province and there was no possibility of the victim going to Wedau. There is no possibility of the defendant burning the institutional house and there is no possibility of the defendant burning down any house in Wedau, Milne Bay as there is no possibility of the victim going to Wedau. Thus, there was no intention in these words for a breach of peach to likely take place.

The prosecution has not satisfied this Court that there is a likely would of the breach of peace to take place. Thus, this charge cannot stand.

Charge of Unlawful Assault

For a conviction against the defendant on this charge on unlawful assault, the prosecution must establish the elements of the charge against the defendant to the satisfaction of this Court.

The offence of unlawful assault per Section 6(3) of the Summary Offences Act is set out in the following terms;

6. ASSAULT
   

(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 a 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 of another without his consent, under such circumstances that 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.

(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 for 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.

Section 6(1) defines the word assault to mean the application of force by one person on another person and is in the following sense; “applies force” includes the application of heat, light, sound, electrical force, gas odour or any other substance or thing if applied to such a 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 of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,

is deemed to assault that person.

Thus, when one assaults another person within the meaning of section 6(3) SOA, it does not mean literally for one to be inflicted with injuries or injuries sustained as a result of the assault. Unlawful assault is the application of force on another person whether with injuries or without injuries without the consent of the one being assaulted.

Here the prosecution evidence came in different version, but all evidence was that the defendant hit the victim with the iron rod.The victim said when she ran out of the house, the defendant threw the iron at the left side of her belly and the second time she was hit on her back and ran to the road. The defendant then poked her with the iron the third time and hit her on the head with the iron and was stopped by Magdalene Wada her.

The prosecution evidence corroborating the evidence of the victim are contradicting the victim’s version of her evidence. The victim’s evidence is, she ran out of the house and the defendant threw the iron rod on the left side of her belly. The evidence of witness Magdalene Wada is that the defendant swung the iron rod on the left side of the victim’s belly and the evidence of MacklynYobuna is that the defendant swung the iron rod on the victim’s legs. The victim was running away from the house and the defendant giving her back side to the defendant. It was not possible for the defendant to throw or swing the iron rod at the left side of the victim’s belly as she was running away from the defendant.

The defendant admitted in cross examination that she threw the iron rod when the victim came out of the house as she was provoked.I take the version of the defendant’s evidence that she throw the iron rod on the garden rake the victim had. Iam of the view that it was during this time that the iron rod contacted the left side of the victim’s belly.

The iron rod that was used by the defendant was not tendered in Court. As the victim was assaulted by the iron rod and the victim going to the hospital and being admitted in the hospital for a week, there was no Medical Report to confirm same. The victim in evidence said, she did not sustain any injuries as a result of the assault by the defendant. She was assaulted with an iron and not sustaining any injuries and admitting to the hospital for a week without medical evidence is ridiculous.

The defendant and her witness gave evidence that the victim was assaulted by her hands and not with the iron rod. However, the defendant has not challenged the police evidence that she did not poke the victim with the iron rod or further used the iron to assault the victim apart from the alleged assault when she ran out of the house. The Court is of the view that the victim was assaulted by the defendant with her hands as in evidence and that the victim was poked with the iron rod. I rule out the evidence of the police that the victim was hit on the head with the iron rod as there were no injuries sustained as confirmed by the victim’s own evidence.

The main consideration for this Court to now determine is, as to whether the accused is guilty or not of the charge against the victim is that the essential elements of the offence are established by the prosecution by way of the prosecution evidence now 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 has established the elements of the offence that the accused assaulted the victim. The defendant’s own admission in evidence also goes to the aid of the prosecution establishing the elements of the offence.The prosecution evidence also established that the accused assaulted the victim though there is no medical report to sustain the nature and extent of the injuries inflicted on the victim and that the victim confirmed in evidence that she did not sustain any injuries, the victim was assaulted within the meaning of section 6(2) SOA.

I am therefore of the view that the elements of the charge are established and that a verdict of guilty is returned against the accused for this charge.

COURT ORDER

1. The charges one damaging property, two for insulting words and three for threatening words are dismissed,
2. The accused is convicted oncharge four for unlawful assault.

For the Prosecution: Ms Regina Killip– Police Prosecutor

Lawyer for the Defendant: Ms. Maryanne Emma Tura in person