Police v Kongos [2021] PGDC 127; DC6082 (2 September 2021)

DC 6082

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No. 672 of 2021

CB No. 1138 of 2021
BETWEEN

THE POLICE
Informant

AND

JACINTA KONGOS
Defendant

Boroko: Seth Tanei

2021: 2^nd of September
      

SUMMARY OFFENCE – Unlawful Assault – s 6 (3)– Summary Offences Act 1977.

PRACTICE AND PROCEDURE- Trial- Whether the Defendant Unlawfully Assaulted the victim – Elements of the offence discussed –Elements not proven – Defence of Provocation – Defence made out - Defendant found Not Guilty and discharged.

Cases Cited
Police v Bira [2010] PGDC50; DC1090
Police v Ndramei [2016] PGDC 21; DC2084
State v Paulus [2017] PGDC 42; DC3071
SCR No 6 of 1984; Re Provocation [1985] PGLawRp 455; [1985] PNGLR 31
The State v Roland Rebon (2008) N3495,
The State v Alphonse Dumui (2009) N3686
State v Roth [2018] PGNC 470; N7591

References

Legislation
Criminal Code Act
Summary Offences Act 1977

Counsel

Constable Tarrabie Agu, for the Informant

Jacinta Kongos, the Defendant In Person

RULING ON VERDICT

2^nd September 2021

S Tanei: The Defendant was charged with one count of Unlawful Assault contrary to section 6(3) of the Summary Offences Act 1977. She pleads not guilty.

2. Trial commenced on 13^th July 2021 where the Court heard and received evidence from both the Prosecution and the Defence.
   
3. The Defendant raised the Defence of Provocation.
   
4. Submissions on verdict were made on 17^th August 2021.
   
5. This is my ruling on verdict.
   

CHARGE:

6. The Police allege that on 4^th April 2021 at NAC Compound, 8 Mile, NCD, the Defendant unlawfully assaulted another person namely Zelen Gande by punching her several times on her head and pulled and twisted Zelen Gande’s hand.
   

ISSUES:

7. The Court is faced with the following issues;
   1. Whether the Complainant Provoked the Defendant.
   2. Whether the Defendant did unlawfully assault the victim.
      

THE LAW

8. Section 6(3) of the Summary Offences Act 1977 provides that;
   

(3) A person who unlawfully assaults another person is guilty of an offence.

9. The law is that the Prosecution must prove its case beyond reasonable doubt. That is, they must bring evidence to meet all the elements of the offence. The elements of this offence are derived from section 6 (3) of the Summary Offences Act 1977.
   
10. The Defendant raised the Defence of Provocation.
    
11. The law recognises the Defence of Provocation in cases of assault in sections 266 and 267 of the Criminal Code Act. In the case of SCR No 6 of 1984; Re Provocation [1985] PGLawRp 455; [1985] PNGLR 31, the Supreme Court recognized Provocation as a Defence to Unlawful Assault under section 6 (3) of the Summary Offences Act 1977.
    
12. Sections 266 and 277 of the Criminal Code Act provide that;

“266. PROVOCATION.

(1) Subject to this section, “provocation” used with reference to an offence of which an

assault is an element, means a wrongful act or insult of such a nature as to be likely, when done–

(a) to an ordinary person; or

(b) in the presence of an ordinary person to another person–

(i) who is under his immediate care; or

(ii) to whom he stands–

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) in the relation of master or servant,

to deprive 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......................”

“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.”

EVIDENCE

13. Prosecution called three (3) witnesses;
    1. Zelen Gande

She is the victim in this matter and the Defendant’s step mother. She testified of her history with the Defendant’s family and the problems that she faced as their father’s second wife. She testified that on the day of the incident she was at home. She stated that her husband wanted his granddaughter, the Defendant’s daughter to stay with them. However, she did not agree and removed the girl and told her to go back to her mother. She stated that she put the girl’s things outside and asked for her mother to come and get them. When the Defendant heard that she came and hit her continuously on her head. She did not fight back as she felt dizzy so she held on to the Defendant’s breasts and she stopped. She stated that her hand was also twisted by the Defendant.

During Cross Examination, it was put to the witness that she was not always kind to the Defendant and her siblings. The witness maintained that her husband did not give her and her son any finish pay when he retired. It was also put to her that they both struggled and fought and it was not a one sided fight as put by the witness.

2. Michael Kongos

He is the victim’s son and the Defendant’s half-brother. He testified that he was at home on the day of the incident. He was in the living room when the Defendant came and beat the victim. He says he did not know why they fought. He also stated that the victim may have got cross to the Defendant’s daughter. He stated that the victim’s hand broke as a result of the fight.

In cross examination, the Defendant put to the witness that as siblings they had no issues and the witness agreed.

100. Alice Wezia

She testified that she was brought by the victim from Lae to come and look after her canteen in Port Moresby. She stated that she was outside the house when the Defendant and the victim fought. After they fought, the Defendant went to the canteen got some money and went off. She also stated that the victim’s hand was injured as a result of the fight.

During cross examination, it was put to the witness that the Defendant does not get extra money from the canteen.

14. The Defence had 2 witnesses.
    1. Jacinta Kongos

She is the Defendant in this matter. She testified that the victim is her step mother. Her father had a stroke and is on medication. She testified of her struggle growing up with the victim. She testified that her daughter stays with her father and the victim as her father wanted her granddaughter to stay with him. They all live at 8 mile, NCD but in different houses. On the day of the incident, the victim argued with the Defendant’s father and threw the Defendant’s daughter’s bags out of their house. When she heard about this she instantly went up to the victim and punched her when she provoked her by saying “Bai yu mekim wanem?”or what will you do?. They both exchanged punches.

During Cross Examination, it was put to the Defendant that no one told her that the victim removed her daughter’s bags from the house but the Defendant maintains that it was the daughter and her father who told her that.

2. Nawing Kongos

He is the Defendant’s father. He testified that the victim is his wife. They always had problems. He married her after his first wife died. He stated that on that day the victim threw his granddaughter’s belongings out of the house and may have whipped her with a rubber hose, She cried and ran to her mother, the Defendant who lived in a house not far from theirs. The Defendant then came up and fought with the victim. They both threw punches at each other. He then told them to stop when he saw them fall to the floor.

ANALYSIS OF EVIDENCE

15. The Prosecution’s case is that the Defendant without any lawful reason assaulted the victim and injured her.
    
16. The Prosecution’s first witness supports the Prosecution’s story while the second witness supports the fact that there was a fight between the victim and the Defendant. The Third witness did not witness anything. She was outside the house.
    
17. The Defendant’s story is that she assaulted the victim because she was provoked the actions of the victim. The victim removed her daughter’s belongings from her father’s house.
    
18. The Defendant’s witness supports the Defendant’s story. He said that the victim removed the belongings of the Defendant’s daughter from their house and may have whipped her with a rubber hose so she ran to get her mother. Angered by the actions of the victim, the Defendant instantly went up to their house and fought with the victim.
    
19. The Court received a medical report and a x-ray report from the Complainant and labelled them as Exhibits P1 and P2. However, I upon closer examination of the reports, I reject the X-ray report as it was obtained in February 2021 while the alleged offence occurred in April 2021.
    

UNDISPUTED FACTS

20. From the evidence, the following facts turn out to be undisputed;
    
    1. The victim and the Defendant are related. The victim is the Defendant’s step mother.
    2. The victim and the Defendant both live at DCA Compound, 8 Mile, NCD but in different houses.
    100. The Defendant’s father is sick.
    4. The Defendant’s daughter lives with her grandparents, the victim and the Defendant’s father.
    5. There was a fight between the victim and the Defendant on 4^th April 2021.
    6. The reason for the fight was that the victim threw out the Defendant’s daughter’s belongings from their house.
       

DISPUTED FACTS

21. The following facts are disputed;
    1. The victim was solely attacked by the Defendant.

2. The victim suffered injury as a result of being assaulted by the Defendant.

100. The victim provoked the Defendant.
     

FINDINGS

22. In Order for the Court to find the Defendant guilty of the offence of Unlawful Assault, the prosecution’s evidence must satisfy all the elements of the offence. They are;

1. A person – that person must be the defendant
2. who unlawfully assaults another person - he must do one or more of the acts described in section 6(2) of the Act.
   

23. There is no dispute as to the fact that the Defendant fought with the victim on 4^th April 2021.
    
24. However, the Defendant raised the Defence of Provocation and so it is only proper that the Court makes a determination on it.
    
25. In order for this Defence to stand, the Court must be satisfied that it was the victim who provoked the Defendant or did an unlawful act which caused the Defendant to assault her and that the Defendant was deprived of the power to self-control, acts on it on the sudden and before there is time for her passion to cool and that the force used is not disproportionate to the provocation. In the cases of The State v Roland Rebon (2008) N3495, The State v Alphonse Dumui (2009) N3686 and State v Roth [2018] PGNC 470; N7591, the Courts held that the onus is on the state to disprove the elements of Provocation. These elements are;
    1. the accused was deprived by the provocation of the power of self-control; and
    2. the accused acted on the provocation on the sudden and before there was time for his passion to cool; and
    100. the force used was:
         1. not disproportionate to the provocation; and
    2. not intended to cause death or grievous bodily harm; and
       3. not likely to cause death or grievous bodily harm.
          
26. If the Prosecution does not disprove any of the elements of provocation then the assault will be lawful (The State v Alphonse Dumui [2009] N3686, State v Roth [2018] PGNC 470; N7591).
    
27. The principles of Provocation were comprehensively covered in the cases of Police v Bira [2010] PGDC50; DC1090, Police v Ndramei [2016] PGDC 21; DC2084 and State v Paulus [2017] PGDC 42; DC3071
    
28. I have considered the evidence and the law and I am of the view that the Defence of provocation does stand for the Defendant.
    
29. Firstly, I find that the victim’s action of throwing the Defendant’s daughter’s belongings out of the house amounts to provocation. From the evidence, the defendant’s daughter lives with the victim and the Defendant’s father. On that day, the victim removed her belongings from their house and sent her to her mother, the Defendant. The evidence shows that although they live in separate houses, they live in close proximity and so it will be easy for the Defendant to attend at their house within a short space of time. Any normal person would react to such a situation.
    
30. I find that the victim’s action left no time for the Defendant to cool down. From the evidence, the Defendant reacted instantaneously when she heard about this. When her daughter went crying to her, she went up to her father’s house instantly and confronted the victim.
    
31. Further, I find that she was further provoked when she attended at the house. From the evidence, the victim further provoked her when she asked her “Bai yu mekim wanem?” This added to the situation and caused the Defendant to react the way she did. The Prosecution did not seriously contest this part of the evidence and brought no evidence to disprove it.
    
32. They have not proven that the Defendant had time to cool off and that the Defendant used disproportionate force. The Defendant was forced to react to the victim’s actions and she did not use any weapon to attack the victim. They exchanged punches and she acted on the sudden.
    
33. I take note that the X-ray report (Exhibit P2) was obtained in February 2021 while the alleged offence occurred in April 2021. This is 2 months before the alleged offence. This casts doubt on my mind and clouds the truthfulness of the victim’s story.
    
34. I find that the Defendant has successfully proven all the elements of the Defence of provocation.
    
35. Therefore, I find that the Defence of Provocation stands for the Defendant and the assault on the victim was lawful.
    

CONCLUSION

36. In conclusion, I find the following;
    
    1. The Defendant was deprived of her power of self-control by the victim and acted on the sudden before she had time to cool off. She also used reasonable force.
       
    2. The Prosecution failed to disprove the elements of provocation.
       
    100. The assault on the victim was not unlawful.
         

VERDICT

37. The following are the formal orders of the Court;
    
    1. Jacinta Kongos is found not guilty of the charge of Unlawful Assault contrary to section 6 (3) of the Summary Offences Act 1977 and is acquitted accordingly.
       
    2. This matter is dismissed.
       
    3. The Defendant is discharged.
       
    4. The Defendant’s Bail money of K 300 shall be refunded forthwith.
       

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In person