Police v Ndramei [2016] PGDC 21; DC2084 (22 September 2016)

DC2084

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.3829 OF 2016

BETWEEN:

POLICE

-Informant-

AND:

JON NDRAMEI

-Defendant-

Boroko - NCD: A. Kalandi

2016: 22^nd September 2016

DECISION ON VERDICT

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part iii, Protection of Persons, Section 6(3) Unlawful Assault – Defendant’s Guilty Plea converted to Plea of Not guilty – Defense of provocation available to Defendant – Defendant to prove elements of defense of provocation per Section 267 of Criminal Code –Prosecution to negative the elements of the defence of provocation and establish the assault was unlawful – prosecution failed to negative the defense of provocation.

Counsels:Sergeant Babuda– Police Prosecution

Mr.Jon NDramei – In Persons

Laws:

1. Summary Offences Act
2. Criminal Code s.267

Cases cited

1. Supreme Court Reference No.6 of 1984 [1985] PNGLR 31
2. State – v – Yangidao [1980] N278
3. Browne –v- Dunn (1893) 6 R 67
   

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 Hale Lahui by kicking and punching the victim many times onto the ground.

POLICE BRIEF

The Police allege that the accused Jon NDrameion the 09^thJune 2016 unlawfully assaulted one Hale Lahui by kicking and punching her several times. The prosecution alleges that the accused at their residence at Tokarara at the National Housing Corporation Unit assaulted the victim.

The accused was arraigned and the accused pleaded guilty to the charge but raised the defence of provocation. As a result the guilty plea was converted to a not guilty plea and a trial was conducted. The prosecution called two witnesses that was inclusive of the victim. The prosecution tendered the victim’s statement in Affidavit as evidence and the Defendant called four witnesses inclusive of the accused himself and tendered two Affidavit evidence.

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

As the Defendant has pleaded guilty to the charge of unlawful assault, the elements of unlawful assault are fixed, but raises the defense of provocation. The burden of proof now shifts to the Defendant to establish the elements of the defense of provocation and the prosecution to negative that defense and establish that the assault was unlawful.

ISSUES

The issue basically for this court to determine is;

1. Whether or not the Defendant unlawfully assaulted the victim, one Hale Lahui.

EVIDENCE

Police Evidence

1^st Witness – the victim

The prosecution tendered the victim Hale Lahui’s Affidavit evidence filed 29^th July 2016 without objection from the Defendant. It was admitted as Exhibit P1 for the Prosecution.

The victim’s evidence is in relation to what had transpired between the Defendant and herself after entering into a defacto relationship and living together as husband and wife. The instances of the Defendant assaulting her thus seeking for a protection order. The evidence does not disclose any evidence of the allegation of assault inflicted on her by the Defendant on the 09^th June 2016. However, in the victim’s affidavit, paragraph 14, there is mention of the Defendant beating her on the 09^th June 2006 and chasing her out of their family home. It says, the Defendant punched her and she fell to the ground and he kicked her many times on her head, face and all over her body.

The prosecution tendered the Medical Report dated the 16^th June 2016 without objection from the Defendant.

2^ndWitness Francisca Pondrilei

This witness is the wife of the victim’s brother. She tells of going to Tokarara, the residence of the victim to pick up the victim. She also said, the victim was struggling to open her mouth to eat and that she saw scratches on her body.

Defence Evidence

1^st Witness Jon NDramei (accused)

The accused said, on the 09^th June 2016, the victim called him to pick her and the children at the church after work. He parked at the Tokarara market and was chewing buai when the victim called again and he told the victim he was at the market. He said, when the victim arrived, she accused him of having an affair with another woman. When the victim went into the vehicle, she said as quoted, “you pamuk man, conn man”, in front of the children, but he said, told her to stop as the children were there.

When they got to the house, he got changed and was about to watch the 6.00pm National News, the victim got a betelnut, mustard and lime and walked out of the house. She then yelled out saying he was a pamuk man and a conn man. He said, they were living in a compound and when the victim repeatedly said the same words, it provoked him. He came out of the house, told her to stop there, she ran, ran after her up a small slope and pulled her and that’s how she sustained the scratches. He then slapped her. He said, he only applied reasonable force to stop her from the nuisance.

The Defendant then tendered two Affidavit evidence of two of his witnesses of which he gave Notice to rely on per Section 35 of Evidence Act. The prosecution did not object as no Notice to Cross Examine was given by the prosecution per Section 36 of Evidence Act.

The Affidavit of Susan Oreape filed 25^th July 2016 was labelled as Exhibit D1 and the Affidavit of Miriam Skonga also filed 25^th July was labelled as Exhibit D2 for the Defendant.

These Affidavit evidence are very remote to the act of the alleged allegation against the Defendant.

2^nd Witness DeslynWatam

This witness is the uncle of the Defendant. She said, the victim, herself and the children were picked up by the Defendant at Tokarara market when they returned from the Church. The victim was arguing with the Defendant in the vehicle when they went home. When they got home, the victim was still not happy so went outside and shouted saying, uncle was a pumuk man, asshole. When the victim was saying this, the Defendant went out of the house and chased the victim, but did not see what happened as she was inside 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

The trial was basically for the purposes of the Defendant raising the Defence of Provocation and for the prosecution to negative the defence of provocation as there was admission to the offence of assault. The prosecution tendered the evidence of the victim, Hale Lahui through the use of Affidavit evidence. The affidavit at paragraph 14 says on the Thursday, 09^th June 2006, at our Tokarara home, I was chased to the street, punched me and when I fall to the ground; he kicked me several times on my head, face and all over my body.

This was the only relevant part of the evidence by the affidavit of the victim. The year is indicated as 09^th June 2006, but as both the victim and the Defendant are in consensus that the incident unfolded on the 09^th June 2016, I take it that it was a typing error.

The evidence of one Francisca Pondrilie goes to the extent of confirming and corroborating the fact that the victim was assaulted as she saw scratches on her body and that she was struggling to open her mouth.

The Medical Report by one Nursing Officer, Agatha Gola dated the 16^th June 2016 was a result of the victim being examined and diagnosed by her on the 10^th June 2016, the next day after the incident. The examination revealed the victim had scratches on her forehead, swollen tender of right side jaw, abrasions and scratches on her elbow and knee.

The prosecution did not adduce any evidence or there was no evidence by the victim to gearing as establishing that the Defendant unlawfully assaulted the victim to the extent of negating the defence evidence, the defence of provocation.

The Defendant in his evidence established that he assaulted the victim on the basis of being provoked. He said he applied reasonable force to stop her from what she was saying.

The defence of provocation is not stipulated in the law that creates the offence of unlawful assault under the Summary Offences Act. However, its settled law by the Supreme Court Reference No.06 of 1984 [1985] PNGLR 31, that the defence of provocation under s.267 of the Criminal Code Chp 262 is applicable not only to offences as per the Criminal Code, but is equally applicable to a charge of unlawful assault under the Summary Offences Act. Therefore, the defence of provocation for the Defendant here charged under s.6 (3) of the Summary Offences Act is applicable to him.

When the Defendant raised the defence of provocation, the Defendant must establish the elements of the defence of provocation pursuant to Section 267 of the Criminal Code. For purposes of assistance, Section 167 of the Criminal code is set out hereunder;

Section 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.

Thus the elements of the defence of provocation are set out per sub-section 267(1) of the Criminal Code, which the Defendant must establish for the benefit of his defence. The elements are set out as follows;

“A person who is charged with an offence is not criminally responsible for the assault committed on a person who gives him provocation for the assault, provided that the person charged;

(1) Is deprived by the provocation on the sudden; and
(2) He acts on the provocation on the sudden; and
(3) Before there is time for his passion to cool; and
(4) Provided that the force used by the person charged is not disproportionate to the provocation; and
(5) Is not intended to cause death or grievous bodily harm; and
(6) The force used is not likely to cause death or grievous bodily harm. “

The prosecution then has the onus to negative the elements of the defence of provocation and establish that the assault was unlawful. In the case of State v Yangidao [1980[ N278, the onus is on the prosecution to negative the defence of provocation, when there is sufficient evidence to raise the defence of provocation.

The Defendant said, the victim at the first instance called him a “pamuk man and a conn man” at the Tokarara market when she hoped onto the vehicle which he told her to stop as the children were there. When they came to their unit, again the victim went out of the house and started yelling and calling out the Defendant a “pamuk man and a conn man” repeating the same words repeatedly. They were living in a National Housing Corporation unit in a compound where others of his former colleagues were also living there. This Court is of the view that, they were not living on their own, but in a NHC building containing many units and that they were living in one of the units and that there were other people living in the other units and those were some of his former workers and colleagues living there forming a compound by those living there. As a result, he went outside and assaulted the victim.

The Court is of the view that, when the victim yelled and shouted the same words repeatedly, the Defendant was insulted and that provoked him to assault the victim. Section 266 of Criminal Code, makes reference to the use of provocation in offences of which assault is an element in a wrongful act or insult of such a nature as to be likely, when done deprives 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.

The Court is of the view that the Defendant went outside in the process of the victim calling and shouting that he was a “pamuk man and a conn man” and subsequently the elements of his defence followed. Here the victim instigated the insult on the Defendant and the assault on the victim was a result of that. The Defendant has established the elements of the defence of provocation on the balance of probabilities as set out per s.267(1) Criminal Code.

I have not cited any case authority where the burden of proof shifts to the prosecution where defense of provocation is raise apart from the case in State v Yangidao [supra], but in the case where the defense of self defense is raised, the burden of proof shifts to the prosecution. In the case, State v Tade [2007] N3115, on a trial, once the evidence discloses a ground on which the plea of self-defense may arise, the burden shifts to the prosecution to prove beyond reasonable doubt that one of the elements of the defense is not present, see Rv Paul Maren (1971) IN 615 Rv Para-Parilla (1969)No. 527 and RvKristeff (1967) 445.

When the defense of provocation is raised in a charge where assault is an element in a wrongful act or insult, the prosecution has the onus to negative the defense. On this basis, I am of the view that the burden to disprove the elements of the defense of provocation shifts to the prosecution and the prosecution then has the burden to proof beyond reasonable doubt that the elements of the defense of provocation are not available to the defendant.

The prosecution was very well aware that the Defendant was raising the defence of provocation. The Defendant’s guilty plea was changed to a not guilty plea as the defense raised the defense of provocation and that the prosecution was not taken in ambush. For the defense of provocation to be established, the elements of the defense of provocation need to be satisfied. The prosecution then has the onus to satisfy the Court that the elements of the defense of provocation are negated and establish the assault on the victim was unlawful. In this regard, the burden to disproof that the elements of the defense of provocation are not satisfied for the defense of provocation not to stand surely is the shift of the burden of proof to the prosecution.

The prosecution failed to utilise the rule in Brown v Dunn [1893] 6 R 67to put the victim’s case to the defendant to negative the defense of provocation by the Defendant. The rule inBrown v Dunn is very significant in cross examination to put ones case forward by extracting evidence from the opposing side. Here the prosecution failed to put its case to the Defendant to negative the elements of the defence of provocation and establish the offence of assault was unlawful as alleged on the Defendant. I therefore return a verdict of not guilty on the Defendant.

Orders accordingly.

For the Prosecution: Sergeant Babuda - Police Prosecutor

Defendant: In Person