Belas v Magara [2018] PGDC 11; DC3069 (2 February 2018)

DC3069

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]

GFCr 18 of 2017
BETWEEN

ESTHER BELAS

Informant

AND

MATHEW MAGARA

Defendant

BUKA: B.TASIKUL

2018: 02^nd February
     

CRIMINAL:

Cases Cited:

References:

Counsel:

Lawyer for the Informant: First Constable Jonathan Magara

Lawyer for the Defendant: in person

DECISION

1. BTASIKUL: PM. The defendant appeared before me on the charge that he committed an act of domestic violence towards his wife Joyce Matioko by punching her on her head. He was charge under s. 6 (1) of the Family Protection Act, 2013.He pleaded guilty to the charge.
   
2. It was alleged that on the 08^th of January, 2018 he assaulted his wife several times by punching her on her head using his fist. The wife reported the matter to the police where he was arrested and charge.
   
3. When asked by the Court if these facts read to him by the prosecution is true and correct and he admitted all the facts before me are true, however, he told the court that the reason why he assaulted her is because she has been seeing another man.That was the second time and he himself witness it. He further told the court that his children also are aware of their mother having an affair with another man. That makes him angry so he assaulted his wife.
   
4. Section 6 of the Family Protection Act states;
   

(1)A person who commits an act of domestic violence is guilty of an offence. Penalty: A fine not exceeding K5000.00 or imprisonment for a term not exceeding two years.

(2) It is not a defense to an offence under subsection (1) that the defendant has paid an amount of money or given valuable consideration, in accordance with or her custom, to the complainant.

5. After the defendant raises the reasons why he assaulted his wife brings me to the issue of whether the defence of provocation is available for him under the Family Protection Act.S.267 of the Criminal Code provides the defence of provocation for a person charged with assault if he can prove that he was provoke.
   
6. However, glancing through this Family Protection Act, 2013 I find that the Act itself is very silent on such issues. The objective of the Family Protection Act, 2013 is to promotesafe, stable and strong families and to prevent domestic violence in the community.
   
7. This legislation was enacted due to wide spread of domestic violence throughout our communities’ nation-wide. Under this law domestic violence has now become a criminal offence, whereby a victim of domestic violence may also obtain Protection Orders concurrent to criminal proceeding against their spouses or person charge under this law.
   
8. While I appreciate that this law is there to protect victims of domestic violence, the question remain unanswered is what happen if a man commit domestic violence against her wife because the wife is having an affair with another man as the case before me?
   
9. Can he can be protected under this same legislationi.e.; Family Protection Act, 2013?While the underlying principles of the Act is capture under s.4 of the Act (c) states: that violence in marriage is not a private matter, but a social problem of public concern; and

(d) That stopping violence will strength marriage and improve family life.

10. Yes, I totally agreed as it is the paramount underlying principle. The only issue on the case before me is can the defendant be excused in law in committing domestic violence against his wife because the wife is having affair with another man.
    
11. It is my view that NO he cannot claim that his reason are justified in law because of what his wife did. I find the defendant guilty of committing domestic violence upon his wife. Having expressed my view on that issue, I think this law must be re-visited. If a spouse can proof beyond reasonable doubt that her or his partner is having other sexual relationshipthen,the defence of provocation may apply in this circumstance.
    
12. I say this because there are some women who hide under the protection of the law, Family Protection Act, 2013and cover up their wrongs.
    
13. Therefore taking into account the circumstance and the factors mention in this case before me I find the defendant guilty and placed defendant on a six months good behaviour bond with a surety of K200.00. His bail of K400.00 is refunded.