Police v Kambrian [2021] PGDC 167; DC7021 (17 November 2021)

DC7021

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

Sum. No. 2292 - 2293 of 2020

CB No. 3990 of 2020
BETWEEN

THE POLICE
Informant

AND

KOLET KAMBRIAN
Defendant

Boroko: Seth Tanei

2021: 17^th of November
      

SUMMARY OFFENCE – Unlawfully on Premises – s 20 – Summary Offences Act 1977, Unlawful Assault – s 6 (3) – Summary Offences Act 1977.

PRACTICE AND PROCEDURE- Trial- Whether the Defendant was Unlawfully on Premises - Whether the Defendant Unlawfully Assaulted the victim - Elements of the offences discussed – Elements of Both Offences Not Proven - Defendant found Not Guilty.

Cases Cited

Police v Bira [2010] PGDC50; DC1090
Police v Ndramei [2016] PGDC 21; DC2084
State v Paulus [2017] PGDC 42; DC3071
Police –v- James [2021] PGDC 97; DC6051
Police –v- Timothy [2009] PGDC 99; DC953
Police –v- Kongos [2021] PGDC 127; DC6082

References

Legislation

Summary Offences Act 1977

Counsel

Sergeant Wilson Golina, for the Informant

Kolet Kambrian, the Defendant In Person

RULING ON VERDICT

17^th November 2021

Seth Tanei: The Defendant was charged with one count of being Unlawfully on premises contrary to section 20 of the Summary Offences Act 1977 and one count of Unlawful Assault contrary to section 6(3) of the Summary Offences Act 1977. She pleaded not guilty to both charges.

2. The matter went for trial which concluded on 9^th September 2021.
   
3. Parties made submissions on verdict on 25^th October 2021 after a number of adjournments.
   
4. This is my ruling on verdict.
   

CHARGES:

5. The Police allege that on 29^th October 2020 at Taurama, National Capital District, Kolet Kambrian of Sari Village, Wagag, Enga Province did without lawful excuse was in the premises namely the dwelling house of Joshua Kolaip.
   
6. Police also allege that on 29^th October 2020, at Taurama, National Capital District, the Defendant unlawfully assaulted another person namely Christy Kolaip by pointing fingers at her face.
   

ISSUES:

7. The Court is faced with the following issues;
   1. Whether the Defendant was unlawfully on the victim’s premises.
   2. Whether the Defendant unlawfully assaulted the victim.
      

THE LAW

8. Section 20 of the Summary Offences Act 1977 provides that;
   

A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence.

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

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

10. It is trite law in this jurisdiction that in criminal matters, the Police must bring evidence to meet all the elements of the offence. Such must be proven beyond reasonable doubt.
    
11. The elements of the offence of being unlawfully on premises were discussed in the cases of Police –v- James [2021] PGDC 97; DC6051 and Police –v- Timothy [2009] PGDC 99; DC953.
    
12. The elements of the offence of unlawful assault were discussed in the cases of Police –v- Ndramei [2016] PGDC 21; DC2084, Police –v-Bira [2010] PGDC 50; DC1090, State –v- Paulus [2017] PGDC 42; DC3071 and Police –v- Kongos [2021] PGDC 127; DC6082.
    

EVIDENCE

13. Prosecution called three (3) witnesses;
    
    1. Joshua Kolaip

He is the owner of the property. He testified that on the day of the incident, he drove out of the residence in the morning. When he came back he saw people in his yard, including the Defendant. His second wife was crying and came to him. He then told those people that he is a law abiding citizen and he will let the law deal with them. He said the Defendant and a Policeman told his second wife to pack up and leave.

During Cross Examination, it was put to him that he neglected his wife who was sick and bedridden and so the Defendant and others brought the wife back to the house. He said he was never notified by anyone before they brought his first wife back.

2. Christy Kolaip

He is the Second wife of Joshua Kolaip. She testified that at that time she and her children were at their house. All of a sudden, the Defendant and others were outside her house pointing fingers at her and telling her to pack up and leave. Her husband was not there so she was scared and told them to wait for the husband to return. She also testified that her husband’s first wife was sick and the Defendant and others brought her in to the premises.

During cross examination, the Defendant put to her that she came with Police. She responded that the Defendant only brought Joshua Kolaip’s first wife while the Police came later.

100. James Maso

James Maso is employed as a guard by Joshua Kolaip. He testified that he was manning the gate to Joshua Kolaip’s premises when the Defendant and others came. He said a man by the name of Winnis Leo came out shouted at him and forced him to open the gate. He also said that he was afraid and thought that Joshua Kolaip may have killed someone so he ran away to get his boys. He said when he came back he found Joshua Kolaip’s first wife in the house. He said the first wife was sick. He also said Winnis Leo told the second wife of Joshua Kolaip that she had no right to live in the house and that she should pack up and leave.

During Cross Examination, the Defendant put to him that he was not there and he maintained that he was there.

14. The Defence had two (2) witnesses.
    1. Kolet Kambrian

She is the Defendant in this matter. She testified that this case is really about her sister. Her sister is Joshua Kolaip’s first wife. She says her husband did not help her seek medical help. When she came down to Port Moresby, she asked Joshua Kolaip to bring his first wife to the hospital but he refused. She said she brought Joshua Kolaip’s first wife to the hospital with the help of the Police. She suffered from a stroke. She was at the hospital for a month. When she was discharged, Joshua Kolaip refused to take her back. She had nowhere to go so she sought help from the Police. The first wife was sick and was unable to care for herself and she needed to be brought home.

She said on that day, Joshua’s cousin brother was at the gate when they brought Joshua Kolaip’s first wife to the house. He opened the gate freely and let them in and they went and left Joshua’s first wife at her house. The Police then gave a letter to Joshua Kolaip for him to fix his family problem. She also testified that after they left the first wife, they told the second wife that Joshua should rent another house for her so she could stay away and leave the first wife in peace. She said they did not argue with her or fight with her. She then stayed with her sick sister for a week. A week later, Joshua Kolaip brought a paper and told her to sign. Then she was taken to the Police Station where she was arrested and charged.

She also testified that her sister later died as a result of being neglected by her husband.

During cross examination, she was asked if she got permission to enter Joshua Kolaip’s yard. She answered that she only brought Joshua’s sick wife back to her house. She had a reason to enter the yard. It was also put to her that the property belongs to Joshua Kolaip but she answered that her sister is the legal wife and also owns the property. She also denied pointing her fingers at Joshua Kolaip’s second wife.

2. Winnis Leo

He is a relative of the first wife of Joshua Kolaip and the Defendant. He is also an Officer bearing the rank of Major in the PNG Defence Force. He testified that on that day he and the Defendant took their sister, the wife of Joshua Kolaip to her matrimonial home at Taurama, NCD. He said he drove her in his car. She had been in the hospital for a month. When they arrived at the gate they asked the guard to open the gate and they drove in. She said they went with the Police because the husband did not want her to go back to the house. They also had a Court Summons which they served on the second wife. This was tendered into evidence (Exhibit D1). After that they prayed with their sister and were about to leave when the husband came in. The Police explained the contents of the Summons and left. When the Complainant came in, he bought drinks for everyone there and then they all went away. He said Joshua Kolaip neglected looking after his wife when she was sick. He tendered a letter from the Welfare office (Exhibit D2). He tendered another referral form from the Family Support Centre (Exhibit D3). He tendered picture of his sister (Exhibit D4).

During Cross examination, he stated that he and the Defendant had a lawful reason to enter the premises as they were only bringing back Joshua Kolaip’s legal wife. She had a right to be brought back to her house. He also stated that they never attacked nor pointed fingers at the Second Wife of Joshua Kolaip.

EXHIBITS

1. Exhibit D1 – District Court Summons
2. Exhibit D2 – Letter from Welfare.

100. Exhibit D3– Referral from the Family Support Centre showing Joshua Kolaip’s negligence of his wife.

4. Exhibit D4 – Photographs of Christina Kolaip
   

ANALYSIS OF EVIDENCE

15. The Prosecution’s case is that the Defendant without any lawful reason entered the premises of Joshua Kolaip and assaulted his second wife by pointing fingers at her.
    
16. The Prosecution’s witnesses were not coherent. The First witness was not at the scene when the alleged offences occurred. He came later and found the Defendant and Winnis Leo on the premises. He tried too hard not to mention anything about his first wife.
    
17. The Prosecution’s second witness story is inconsistent. She first said that the people outside her house were strangers, then she said that she realised that they were relatives of her husband’s first wife.
    
18. I find it hard to believe the Prosecution’s third witness because he said that he went away as soon as the Defendant and others came into the property. However, he said he was there when Winnis Leo told the second wife of Joshua Kolaip to pack up and leave. He did not mention anything about the Defendant committing any of the alleged offences.
    
19. The Defendant’s story is that she went to leave her sick sister at her own house because her husband (Joshua Kolaip) had neglected her and refused to take her back to the house. This part of the evidence was not seriously tested by the Prosecution.
    
20. The Defendant’s witness corroborated the Defendant’s story. His testimony was clear, coherent and laid out in a chronological manner. He was cool, calm and collective throughout his evidence.
    

UNDISPUTED FACTS

21. From the evidence, the following facts turn out to be undisputed;
    
    1. The victims live at Taurama, NCD
    2. Joshua Kolaip has two (2) wives.
    100. Joshua Kolaip and his first wife own the property that is in question.
    4. His first wife Christina Kolaip suffered a medical condition and was sick.
    5. On 29^th October 2020, the Defendant and her relative with the help of Police brought their sister, the first wife of Joshua Kolaip to her matrimonial home at Taurama.
       

DISPUTED FACTS

22. The following are disputed;
    
    1. The Defendant was not invited into the property by Joshua Kolaip
    2. The Defendant and her relatives pointed fingers at the second wife of Joshua Kolaip and told her to leave.
       

FINDINGS

Charge 1: Unlawfully On Premises
Whether the Defendant was unlawfully on the Defendant’s premises on 26^th May 2021?

23. The charge of being unlawfully on premises will be dealt with first.
    
24. In order for the Court to find the Defendant guilty of being unlawfully on premises, the Prosecution must satisfy all the elements of the Offence. They are;
    1. A person – that person must be the defendant
    2. Is in, on or adjacent to the premises – the Defendant must be actually in, on or adjacent to the premises.
    100. Without lawful excuse - the Defendant must not have a lawful excuse to be on the premises.
         
25. In the case of Police –v- Sarah James, I applied the principles in the case of Police –v- Bira where the Court used this process to determine the guilt of the Defendant. The Police evidence must answer the following questions;
    
    1. Is the person the Defendant?
    2. Is the Defendant in, on or adjacent to the premises?
    100. Was there any lawful excuse to be on the premises?
         

1. Is the person the Defendant?
   

26. Yes the evidence shows that the alleged offender is the Defendant. She was on the premises on that day. The element of identity is proven.
    
    2. Is the Defendant in, on or adjacent to the premises?
       
27. Yes. The evidence showed that the Defendant was on the victim’s premises on 29^th October 2020. This element of the offence is proven.
    
    100. Was there any lawful excuse to be on the premises?
         
28. This element is the most essential element of this charge.
    
29. Here, the Prosecution must prove that there was no lawful excuse for the Defendant to be on the premises or that the victim has not given his consent for the Defendant to be on his premises.
    
30. In order to prove or disprove this element, I have to find from the evidence if there was actual consent by the victim or an invitation by the victim for the Defendant to be on his premises or that there was a lawful reason for the Defendant to be on the premises.
    
31. I find from the evidence that the Defendant and her relatives brought the first wife of Joshua Kolaip to her own home. There is no need to get any permission from anyone. There is no evidence from the Prosecution to show that there is a restraining order preventing her from going to her own home. There is also no evidence to show that the first wife and Joshua Kolaip were divorced or separated.
    
32. However, there is evidence to show that the wife was really sick and weak and needed assistance to be brought back to her house.
    
33. I find that the Defendant and her relatives only did what responsible relatives would do in situations like this. They brought the lawful wife of Joshua Kolaip back to her house and there is no crime in that.
    
34. The exhibits that were tendered in Court by the Defendant showed that Joshua Kolaip’s first wife was sick and was not at her home and her relatives had problems bringing her back to her house after she was discharged from the hospital. After going through a lot of hardship, they decided to bring her to her matrimonial home.
    
35. I therefore find that there is a lawful reason for the Defendant to enter the premises.
    
36. She was lawfully on the premises.
    

Charge 2: Unlawful Assault

Whether the Defendant unlawfully assaulted the victim.

37. I now turn to the charge of unlawful assault.
    
38. 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.
       
39. I find from the evidence that there is no unlawful assault by the Defendant.
    
40. Firstly, the Prosecution’s first witness was not there when the alleged offence occurred. Secondly, I find that the third witness was not there when the alleged offence occurred. Their account of the event is hearsay. This leaves the victim’s evidence uncorroborated and unsupported. He evidence in this case does not hold.
    
41. I have carefully considered the Defendant’s evidence and I believe the Defendant’s story as well as her witness’s story that there was no assault in any form against the victim.
    
42. I therefore, find that the Defendant did not assault the victim in any way.
    

CONCLUSION

43. In conclusion, I find the prosecution has not proven its case beyond reasonable doubt on both charges.
    

VERDICT

44. The following are the formal orders of the Court;
    
    1. Kolet Kambrian is found not guilty and is acquitted of the charges of being Unlawfully on premises contrary to section 20 of the Summary Offences Act 1977 and Unlawful Assault contrary to section 6 (3) of the Summary Offences Act 1977.
       
    2. The Charges against the Defendant are dismissed.
       
    3. The Defendant is discharged.
       
    4. The Defendants bail money of K 300 shall be refunded forthwith.
       

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In person