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Police v Wairap [2021] PGDC 171; DC7032 (6 December 2021)

DC7035

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

Sum No. 1110 of 2021

CB No. 1910 of 2021
BETWEEN

THE POLICE
Informant


AND

ROSA LOWAIP WAIRAP
Defendant


Boroko: Seth Tanei


2021: 6th of December
      

SUMMARY OFFENCE – Breach of Conditions of Protection Orders – s 20 Family Protection Act 2013.


PRACTICE AND PROCEDURE- Trial- Whether the Defendant Breached Conditions of a Protection Order – Elements of the offence discussed –Elements not proven –- Defendant found not guilty.


Cases Cited


The State v Takip Palne [1976] PNGLR 90


References


Legislation
Family Protection Act 2013


Counsel

Constable Tarabbie Agu, for the Informant

Rosa Lowaip Wairap The Defendant In Person

RULING ON VERDICT

6th December 2021


S Tanei: The Defendant was charged under section 20 of the Family Protection Act 2013 for breaching a Family Protection Order. She pleaded not guilty.


  1. The matter went for trial and trial ended on 29th September 2021.
  2. Submissions on verdict were made on 22nd November 2021.
  3. This is my ruling on verdict.

CHARGE:


  1. The Police allege that on 6th July 2021 at Burns Peak, NCD, the Defendant breached a Permanent Protection Order dated 6th July 2021 by assaulting the Complainant, Thomas A Wairap, with a stone and a stick on his head and back. These actions breached item 2 of the Court Orders of 6th July 2021 which prevents her from assaulting him.

ISSUES:


  1. The Court is faced with the following issues;
    1. Whether the Defendant breached the Court Orders of 6th July 2021.

THE LAW


  1. Section 20 of the Family Protection Act 2013 provides that;

20. OFFENCE TO BREACH FAMILY PROTECTION ORDER.

(1) A person who breaches a condition or conditions of a family protection order or an interim protection order is guilty of an offence.


Penalty: A fine not exceeding K 10,000.00 or imprisonment for a term not exceeding three years or both.


  1. In this jurisdiction, the Prosecution must prove its case beyond reasonable doubt. This means that Police must call evidence to meet all the elements of the offence (The State v Takip Palne [1976] PNGLR 90).
  2. The elements of this offence are found in section 20 of the Family Protection Act 2013.

EVIDENCE


  1. During trial, both the Prosecution and Defence called witnesses. They all testified from the Witness Box.
  2. Prosecution called one (1) witness;
    1. Thomas A Wairap

He is the Complainant in this matter. He testified that on 6th July 2021, he went to the Defendant’s house to serve a Permanent Protection Order on her. At her house, they argued and the Defendant beat him up. He said there was no one there. He says the Defendant is his daughter in law. He also said the Defendant used sorcery on his nephew to kill him and when he died they moved him out of the house. He tendered a copy of a Court Order (Exhibit P1).

During Cross examination, the witness maintained that the Defendant beat him.


  1. The Defence had two (2) witnesses.
    1. Rosa Lowaip Wairap

She is the Defendant in this matter. She testified that the Complainant took her to Court and they were ordered to live together. On the day of the incident, the Complainant came home late. She didn’t like people coming late to the house as her children feared old people and policemen. When she came home, she found her children crying. When she saw the Complainant she told him to leave. She said she never beat him. The Police came the next day and arrested her. She also said he has a history of fighting with her.

During Cross examination, it was put to the Defendant that she beat the Complainant. However, she maintained she was innocent. She further said that if she attacked him the manner in which she was alleged to have attacked him, he would have sustained severe injuries as he is a very old man.

  1. Joseph Kil

He testified that he lives at Burns Peak, NCD together with the Complainant and the Defendant. He said he was there and that he saw the Complainant and the Defendant. However, he said he did not see them fight or the Complainant beating the Defendant. He said they had an argument over the block which they lived in. The Complainant claims it while the Defendant also claims it.

During Cross examination, he maintained that there was no fight between the Complainant and the Defendant on that day.


ANALYSIS OF EVIDENCE

  1. The Prosecution’s story is that the Defendant breached a Permanent Protection Order dated 6th July 2021 on 6th July 2021.
  2. The Prosecution’s only witness told the Court that he obtained a Family Protection Order dated 6th July 2021. On 6th July 2021, he tried to serve the Court Order on the Defendant when he was attacked by the Defendant.
  3. The Defendant denies the allegations outright. Her story is that the Defendant made the story up as he had interest in the land on which they are living in and that she did not assault him in any way. Her witness also supports her story.

UNDISPUTED FACTS


  1. From the evidence, the following facts turn out to be undisputed;
    1. The Complainant and the Defendant are relatives as the Defendant was married to the Complainant’s late nephew.
    2. The Complainant went to serve a Court Order on the Defendant on 6th July 2021
    1. The Complainant and Defendant live at Burns Peak, NCD.
    1. There was an Interim Protection Order obtained by the Complainant earlier in 2021 against the Defendant.

DISPUTED FACTS


  1. The Defendant attacked the Complainant on 6th July 2021 with a stone three times on his back and attacked him with a stick by hitting his elbow three (3) times.
  2. The Defendant breached the Permanent Protection Order of 6th July 2021.

EXHIBITS


A) From Prosecution;

  1. Exhibit “P1” – Court Order of 18th June 2021

FINDINGS

  1. I have not come across any reported case precedent that dealt with this particular offence.
  2. However, I have carefully read the law in relation to this particular offence and I hold the view that in order for the Court to find the Defendant guilty of the offence of Breach of Protection Orders under section 20 of the Family Protection Act 2013, the Police must bring evidence to meet the following elements;
    1. A person - That person must be the Defendant
    2. who breaches a condition or conditions - The Defendant must breach a particular condition of the Family Protection Order.
    1. of a family protection order or an interim protection order – There must be an existing Family Protection Order or Interim Protection Order against the Defendant.
  3. From the elements of the offence, the following questions must be answered in the affirmative by the Police evidence in order for the Court to return a guilty verdict.
    1. Is the person the Defendant?
    2. Is there a Permanent/Family Protection Order against the Defendant?
    1. Was there a breach of any of the Conditions of the Court order?
  1. Is the person the Defendant?
  1. Yes. The identification of the Defendant is not in dispute.
  1. Is there a Family/ Permanent Protection Order against the Defendant?
  1. This is a very important element of this offence. An Affirmative answer to this question will provide the basis for the prosecution to prove the last element.
  2. I have carefully considered the evidence against the Charge.
  3. The charge on the Police Information says that the Defendant breached Permanent Protection Orders of 6th July 2021.
  4. However, from the evidence, I find that there was no Court Order of 6th July 2021.
  5. From the evidence, there was a Permanent Order of 18th June 2021.
  6. It is my view that in order for the Court to accept the Court Order of 18th June 2021 as the correct Order, the Prosecution must properly make an application to amend the Police Information so as it reflects the Correct Court Order. This will make the evidence correspond to the charge.
  7. The Prosecution, at no time in this proceeding, made any application to amend the Information to reflect the correct Protection Order.
  8. This means that there is no Court Order against the Defendant dated 6th July 2021.
  9. I therefore, answer this question in the negative.
  1. Was there a breach of the Court Orders?
  1. I find that there is no need to answer this question as the Court found that there was no Court Order of 6th July 2021.

CONCLUSION

  1. In conclusion, I find that the Prosecution has not proven its case beyond reasonable doubt.

VERDICT


  1. The following are the formal orders of the Court;
    1. Rosa Lowaip Wairap is found not guilty of the charge of Breaching a Protection Order contrary to section 20 of the Family Protection Act 2013 and is acquitted.
    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

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