Police v Haurama [2016] PGDC 23; DC2087 (28 September 2016)

DC2087

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.5001 OF 2016

BETWEEN:

POLICE

-Informant-

AND:

ERNEST HAURAMA

-Defendant-

Boroko - NCD: A. Kalandi

2016: 28^th September 2016

JUDGMENT ON SENTENCE

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part iii, Protection of Persons, Section 7(b) Provoking Breach of the peace– uttering insulting words

Counsels:Constable Hembehoie – Police Prosecution

Mr.Ernest Haurama – In Person

Laws:

1. Section 7(b) Summary Offences Act

Cases cited
Nil

KALANDI. A. DCM: The offender was charged withtwocounts contrary to Section 6(3) SOA for unlawful assault and Section 7(b) for using insulting words against the victim, one Sarah Lalatute. However, the prosecution withdrew the charge on unlawful assault for being defective and proceeded with the charge on insulting words. The information reads; the defendant Ernest Haurama on the 31^st day of June 2016, at Rakatani Street, Tokarara, Nationl Capital District used insulting words, namely, Rosky, yukaikaikanblongmamamblongyu, yupamuk to one Sarah Lalatute with intend to provoke a breach of the peace.

The Defendant was arraigned and he pleaded guilty tothe charge of insulting words and the prosecution made application to seek assistance from the arresting officer in relation to the second count, unlawful assault. When the matter returned, the prosecution made application to withdraw the second charge for unlawful assault. The applicant was granted and without reading the statement of facts, with the view that it was already read to the defendant, submission of sentence were made. After submissions on sentence were made, the Court realised that the statement of facts was never read to the defendant. The Court directed for the statement of facts to be read and the statement of facts was read to the Defendant which he understood and confirmed his plea. However, he said, he was insulted by the victim too and what he said was a result of the victim insulting him too. For the defense of provocation to be available on the defendant, he did not ascertain the nature and the circumstances of the insult on him by the victim. As a result, the advantage of the defense of provocation was not accorded to him, but consideration to be made in sentencing. As a result submissions were made and this is the Court’s Ruling on sentence.

POLICE BRIEF

The Police allege that the offender, Ernest Haurama on the 31^st June 2016 at around 6.30pm uttered insulting words on the complainant, one SerrahLalatute. The complainant, one SerrahLalatute and her cousins, Rosky and LeslyLalatute were walking to a Tucker Shop at Rakatani Street where they were met by the defendant and the little daughter of the complainant and the defendant. The little girl when seeing the mother cried and when she went to hug and kiss the little girl, the defendant swung his hands at her but she blocked them and the defendant swore at her.

When the complainant walked away from the defendant with her cousins, the defendant shouted and insulted her saying, Rosky, yukaikaikanblong mama blongyu ,yupamuk to one SerrahLalatute. As a result the matter was reported to the police and the defendant was arrested and charged.

ISSUES

The issue for the Court to determine is where the statement of facts demonstrates and established the elements of the offence against the defendant. If so what would be the appropriate penalty for the offender.

SUBMISSIONS

The prosecutionand the offender made submissions to assist the Court to determine the appropriate penalty for the offender as the offender was convicted on his guilty plea. However, in the process of determining penalty, the Court realised some fundamental errors or defects in the information and the statement and facts and the Court is of the view that these errors or defects are dealt with prior to the issue on determination of penalty.

APPLICATION OF LAW & FACTS

The complainant is one SerrahLalatute and the information alleges that the defendant uttered the insulting words on the complainant. Thus, the information is set out as follows; Rosky, yukaikaikanblong mama blongyu ,yupamuk to one SerrahLalatute.

The complainant is SerrahLalatute and Rosky is the cousin of the complainant who was with the complainant at the time the insulting words were uttered by the defendant. The statement of facts establishes the information and that it reflected what is laid out in the information.

For a plea of guilty plea to stand, the statement of facts must set out the elements of the offence alleged against the defendant. Here the statement of facts does not establish that the complainant was the one insulted by the defendant in uttering the insulting words. The insulting words were levelled against another person, Rosky the cousin of the complainant.

Thus, the elements of the offence of insulting words contrary to Section 7(b) Summary Offences Act are;

(1) A person who
(2) Uses insulting words
(3) On another person
(4) With the intend to provoke a breach of the peace

is guilty of an offence.

The third element of the offence “on another person” is not captured in the law creating this offence, but I see fundamental that any insulting words uttered must be against a person and that person obviously is the person who complaints of being injured by the utterance of the insulting words. An offence per this provision is not an offence when there is no person affected with the insulting words uttered by a person. Thus, it’s important that the third element of the offence is captured and established.

For purposes of capturing the fundamental ingredient or element of the offence against another person, which is not within the law that created that offence. Hence, this Court relies on Section 46 of the District Court Regulations to include this element, “on another person” to complete the offence. Thus, Section 46 District Court Regulations is in the following terms:

s.46. Supplying deficiencies in Regulation, etc....

Where in this Regulation, there is no provision, or no sufficient provision, for or in respct of any matter or thing, than the Court may supply the deficiency, or allow it to be suppied, in such manner as may be just and proper, and for that purpose regard may be had to any relevant or analogous practice, procedure or form in use by, or for the purpose of, the National Court.

Here the statement of facts thus establish that the defendant uttered the insulting words on the person namely, Rosky and not the complainant. However, the information sets out that the defendant uttered the insulting words on the complainant. Thus, the elements of the offence as per the information are not established. The defendant’s plea of guilty is as a result of misunderstanding of the statement of facts by the defendant when read to him or as a result of the incorrect information being read to the defendant. Hence, the defendant was charged on an offence that was not committed against the complainant. Thus, the defendant’s guilty plea is set aside.

COURT ORDER

1. The defendant’s plea of guilty is set aside
2. The defendant to be re-arraigned before another Magistrate.
   

Police – Prosecution

Defendant – In Person