Police v Kanawo [2021] PGDC 179; DC7028 (25 August 2021)

DC7028

PAPUA NEW GUINEA
[IN THE DISRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 129 of 2021

BETWEEN

POLICE
(Informant)

AND

NORMAN KANAWO
(Defendant)

Vanimo: B. Fehi
2021: 25^th August

CRIMINAL SUMMARY: Charge pursuant to Section 6 (3) of the Summary Offences Act – Trial commenced on plea of not guilty – need to outline elements of the offence – Onus on the prosecution to prove all elements of the offence beyond reasonable doubt – offence of unlawful assault proven beyond reasonable doubt. Verdict of guilty returned against defendant – Sentencing of defendant – Factors in Aggravation outweigh those in mitigation – Non custodial sentence appropriate under the circumstances – Good behavior bond and compensation order sufficient as penalty.

Cases cited:

a) Police v. Bira [2010] DC 1090; and
b) The State v. Jacob Dugura Roy [2007] N3137

Legislation:

➢ Summary Offences Act; and
➢ District Courts Act

Representation:

Sgt. J. Musai for the Prosecution

Defendant appearing in person

DECISION ON VERDICT

25^th August 2021

1. FEHI. B DCM: Defendant stands charged for one count of unlawful assault pursuant to Section 6 (3) of the Summary Offences Act, upon entering a plea of not guilty matter was set down for trial and the defendant now appears for decision on verdict.

RECORD OF PROCEEDINGS

2. Defendant appeared for first mention on 21^st July 2021 whereupon he was arraigned and pleaded not guilty to the charge of Unlawful assault. Trial commenced on 02^nd August 2021, Police opened their case by calling 2 witnesses who gave sworn oral testimonies. Matter was then further adjourned for continuation of trial to 04^th August 2021, were police called their last witness and had their case closed. Thereafter, defendant open his case by giving his testimony followed by that of his two other witnesses. Defence than closed its case. All testimonies were given on oath during the course of the trial. Matter was then set down for decision and adjourned to 25^th August 2021. I proceeded to hand down an extempore decision and this is now my full decision on the matter.

POLICE SUMMARY OF FACTS

3. During the early hours of the morning on Saturday 10^th July 2021, between the hours of 3:00am to 4:00am, the defendant was at Reptiles Police Barracks, Vanimo Urban amidst a drinking party and having in his company the victim’s wife. The victim Marcus Tawakra, being aware of his wife’s whereabouts approached the group in an attempt to remove his wife from the party. He stood by the main road facing the police barracks and called out telling them to release his wife back to him. Following that the defendant and one other female namely Cotliva Kilis approached him at the main road where he was standing and the defendant proceeded to assault him by punching him and by using a stone to hit him on his head. As a result the victim received injuries and was brought to Dapu Health Facility here in Vanimo to receive medical treatment. The matter was then reported to police resulting in the arrest of the defendant and prosecution before me.

THE OFFENCE AND ITS ELEMENTS

4. The charge was brought pursuant to Section 6 (3) of the Summary Offences Act. This provision is worded and appears in the following form:

6. Assault

(1) In this section, “applies force” includes the application of heat, light, sound, electrical force, gas odour or any other substances or thing if applied to such a degree as to cause any injury or personal discomfort.

(2) For the purposes of this section, a person who –

(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gestures, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,

Is deemed to assault that person

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

5. In the case of Police v. Bira [2010] DC 1090, his Worship Kaumi J (as he was then) identified and applied the following elements of unlawful assault which I endorsed and apply as relevant to this proceedings. The following is what his worship stated at paragraph 65:

“65. The defendant has been charged with unlawful assault and the prosecution must prove beyond reasonable doubt that –

(i) the defendant

(a) directly applied force of some kind to the person of another; or
(b) indirectly applied force of some kind to the person of another; or
(c) by bodily act or gesture attempted to apply force of some kind to the person of another when he either had or appeared to have the ability to apply such force; or
(d) by a bodily act or gesture threatened to apply force of some kind to the person of another when he either had or appeared to have the ability to apply such force;

AND

(ii) EITHER

(a) the other person did not consent to what the defendant did; or
(b) the other person did not consent but only because of a false representation of fact made by the defendant who either knew it was false or acted recklessly, not caring whether it was true or not;

AND

(iii) the defendant had no lawful excuse or justification for his act.

They are the elements of the offence. They are subject to three things. Firstly, the offence requires the prosecution to prove that the defendant, inter alia, directly applied force of some kind to the person of another. Secondly, that the other person did not consent to what the defendant did. Thirdly, the defendant had no lawful excuse or justification for his act.

6. My application of the above identified elements to the respective contentious version of events will determine whether I find beyond reasonable doubt on all elements in favor of the prosecution or hold otherwise and find in favor of the defence the existence of doubt on the elements.

POLICE EVIDENCE AND SUBMISSION

7. This is what the prosecution provided as their version of events through the sworn testimonies of their witnesses.

8. In brief, Police key witness Mr. Marcus Tawakra gave oral testimony that on the 10^th July 2021 between the hours of 3:00am to 4:00am he was at the main street road in front of the Police Single Barracks at Reptiles Vanimo Urban. He was there to check on his wife whom he was informed (by his sister in law) was drinking with the defendant and other policeman. While there he called out to where they were up at the barracks for them to return his wife namely Ruth so that he can take her home. The defendant who heard him calling out, took another female who was with them namely Kotliva Kilis and both came down to meet him at the main road. They both approached him and the defendant told him that his wife was drinking with them and that he was with Kotliva. Then defendant asked him where he was from and he replied that he was from Kafle Nuku District and that he was also an Auxiliary Police Officer. At that very moment the defendant picked up a stone and repeatedly banged it on his head and he also punched him on his left jaw causing him to fall knocking him out cold. The female who was with defendant saw this and fled. He lay on the ground for about 10 minutes until he was assisted by his wife Ruth. He got up picked up the stone and walked to his brother’s house, at the house photographs were taken of his injuries and later he was taken to Dapu health center to receive medical attention. A medical report was later prepared and is now before the court marked as Exhibit “A”. The photographs of him receiving medical attention at Dapu and that of his injury are before the court marked respectively as Exhibit “B” & “C”. The incident was than reported to the police resulting in the arrest and prosecution of the defendant.

9. When questioned by the prosecutor, witness confirmed that he felt pain when the stone was banged on his head repeatedly by the defendant until blood came down his head. He confirmed when asked that the defendant held the stone in his right hand and banged it on his head. He also confirmed that defendant used his right hand to punch him on his left jaw. Further, he confirmed that defendant punched him only ones and that caused him to fall knocking him out cold. When asked about the medical treatment he received he confirmed that he got 4 stitches to the cut on his head and that the defendant was under the influence of alcohol when he assaulted him. Finally he confirmed presenting the stone used by the defendant to the arresting officer, also the medical report and photographs of his injuries.

10. Defendant elected not to cross-examine the witness and that concludes the testimony of the victim.

11. The second police witness Miss. Cotliva Kilis provided supporting oral testimony to Mr. Marcus Tawakra by briefly stating that the victim’s wife Ruth on 09^th July 2021 at around 7pm to 7:30pm came looking for her to go with her to the police station for her to lay a complaint. They arrived at the police station where they met the defendant, a policeman who took them into the station. At that time he was in civilian clothes and attended to their complaint. After laying her complaint they came out and were about to leave when the defendant told them that he would go and leave them. He walked them up towards where the Reptiles Single Barracks was and asked Ruth if she could buy him a 12 pack beer. She bought him the beer and upon defendant’s request they all when to the Police Single Barracks and drank until 4am the next day, 10^th July 2021. She stated that at about that time, the victim came and defendant told her to go with him to see the victim so that he could tell the victim that Ruth was not with them. While on their way down defendant picked up a stone and when the victim called out to his wife he used the stone to bang it again and again on the victim’s head. She ran away after witnessing what defendant was doing to the victim.

12. When questioned by the prosecutor as to the nature of the complaint Ruth reported at the police station, she replied that it concerns complaint of assault by the victim on her. When asked whether defendant was on duty that time, she replied yes and that he was in civilian clothes. When asked as to why she went with defendant after victim called for his wife and not Ruth, she replied that defendant told her to do so, so that he can tell victim that Ruth was not there with them. She stated that she did not know the intention of the defendant for doing that. She also confirmed when further asked that defendant held the stone in his right hand and assaulted the victim and that he hit him with force on his head. When asked as to what happened next, she stated that victim fell down and lay flat on the ground, she saw that and ran away because blood was also coming from his head.

13. For clarification, I asked from the bench where she ran too after she saw victim lying with blood on the ground, she said she ran to her family’s house at reptiles. I also asked to confirm whether she returned sometime after and she replied no she went away for good. Further, I asked as to whether she had any idea of the whereabouts of the victim’s wife she replied no. this concludes her testimony before the court. Defendant elected not to cross-examine the witness, this ends witness’s testimony.

14. The third police witness Mrs. Ruth Tawakra provided supporting oral testimony to Mr. Marcus Tawakra by briefly stating that on Friday 09^th July 2021 at about 7pm, she went over to her girlfriend’s house namely Cotliva to get her to escort her down to the Police Station to lay a domestic complaint against her husband the victim. They both came down to the station and saw the defendant standing outside at the road under the mango tree. He saw them and asked and they both told him that they have a complaint concerning money. After that they both when to Yajada to buy beetle nut, defendant followed them and asked them to buy food for the other policeman, so they got a rice and Fanta pineapple and gave it to him. Thereafter defendant took them to the police station got victim’s number from them and called the victim telling him to attend to the police station tomorrow to sort out the complaint. Victim then asked defendant about their whereabouts and the defendant told him that they had already left. It was then that they knew the victim was already home at Reptiles. She then went on to state that they were about to leave for home when defendant offered to escort them. According to her, they all walked up to Reptiles when defendant asked her if she could buy 12 pack beer for him, she went ahead and bought the beer and defendant took them up to the Police Single Barracks where they sat and drank the beer. She said the defendant told her that if her husband is man enough he would come and take her away from him. They were then joined by Raphael, a policeman colleague of the defendant, she bought another cartoon of beer and they continued drinking. She stated that her elder sister called her around that time informing her about the victim looking for her and she told her that they were at Reptiles Police Barracks drinking. According to her, the elder sister told the victim of her whereabouts, he came and called out for her. She wanted to runaway but defendant told her to sit down with Raphael and he took Cotliva and they both went down to see the victim so that they could tell victim that they were together and that she was just with them drinking. At that moment defendant fought the victim, but she could not clearly see what exactly happened as she was up at the barracks with Raphael. She could only make out the defendant giving one punch to the victim, both he and Raphael witnessed that. Raphael saw this and told her to go down and stop defendant which she did. Defendant saw her and told her to go and help the victim who was lying on the ground unconscious for about 10 minutes, she felt and saw blood coming from his head and woke him up. He got up took the stone defendant used on him and went home and she went back to the barracks where they continued to drink until day break.

15. When questioned by the prosecutor about defendant’s presents at the police station on Friday 09^th July 2021, she confirmed that he was on duty but was in civilian clothes. When asked about what the victim said when he called out to them at the police barracks during the early hours of Saturday 10^th July 2021, she replied that he told them to let her go to him because she was married and not a single lady. When asked about the distance she was at when defendant punched victim, she replied saying it was about 15 meters and she could clearly observed from that distance. When asked to confirm her observation of defendant punching the victim, she replied that he used his right hand to punch the victim. When asked about the nature of victim’s injuries she replied that his head was covered in blood.
16. Defendant elected not to cross-examine the witness and this ends the witness’s testimony.

17. No submissions were made by the prosecution on the respective elements of the offence and on how this court should weigh their evidences and find in their favor. Apart from the oral testimonies of the prosecution witnesses, three documents were tendered in as Exhibit evidences without any objection from the defendant. The exhibits described as; i) Medical Report of the Victim dated 14^th July 2021 and prepared by Medical Officer Noah Tanabo, accepted into evidence and marked as “Exhibit A”. ii) 1X photograph of victim receiving treatment at Dapu Clinic, accepted into evidence and marked as “Exhibit B”. iii) 1X photograph of victim’s head injury, accepted into evidence and marked as “Exhibit C”.

18. The above concludes the prosecution’s case against the defendant.

DEFENCE EVIDENCE AND SUBMISSION

19. The defendant in response to the allegation called himself and three other witnesses who all gave testimonies of what they claim to be the version of events.

16. The defendant Norman Kanawo gave evidence and stated that on Thursday 08^th July 2021, Ruth attended to the police station and reported a domestic complaint regarding her husband the victim. He attended to the complaint and tried to get the victim down to the police station to sort out the matter but victim was not too cooperative. He gave his number to Ruth so that she can call him if the victim committed domestic violence on her upon her return from the police station. On Friday 09^th July 2021, between 9am to 10am Ruth called and told him that her husband was still reluctant to come to the police station so he advised her to come by the police station around 4pm when he will be on duty. At about 6pm to 7pm, Ruth came by with her girlfriend and reported to him that her husband the victim packed all his cargo and is not at home. He told her to call the victim to come by the station on Saturday so that they could sort out this minor issue. He confirmed following them to Yajada and asking them to buy food for his other colleague policeman, which they did. He also confirmed that he heard them talking about buying beer and he asked them to buy him a 6 pack. They all went up together to the place where they sell beer close to the police single barracks at Reptiles were she bought them 12 packs SP bottle beer and asked him where they would go and drink that beer. He confirmed taking them to the barracks where they drank the beer. His colleague policeman Raphael joined them between the hours of 8pm to 9pm. They continued until about 2:30am to 3am of the next day when they heard the victim shouting from the main street road up, he called out and said why they policemen took his wife up and drank with her at the police barracks, she is a married woman, then he swore at them. He stated that after hearing him, both he and Raphael went down to the road to stop him, and upon approaching the victim he asked him why he swore and that he should have come up easily and asked them. He went on to state that the victim resist, and he tried to stop him, victim was so drunk that he lost control and fell down. After that he went back up to the barracks with Raphael, who told Ruth to go down and bring her husband home. At the barracks they heard Ruth and victim arguing, victim went home and Ruth came back up, they saw her and tried to get her to return to the victim but she insisted and stayed on with them until day break.

17. Upon cross examination by the police prosecutor, he stated that he was on duty from 4pm to 12midnight and confirmed that he was not in uniform during that shift. He also confirmed that he followed Ruth and her girlfriend up to Reptiles, and that he was with them when they bought beer for all of them and that they were together and drank that beer. When asked as to what happened when victim came calling out for his wife, he said both Ruth and her girlfriend ran away and he did not know where they went, he came down with Raphael to see victim. He denied coming down with Cotliva and maintain that he was with Raphael. He also maintains that he tried to stop victim but he himself lost control and fell down.

18. The defence second witness Raphael Peter gave a version that only goes to confirm the story of the defendant and I find it not necessary to restate all his testimony.

19. The defence third witness Nathan Daniel gave evidence of events that took place after the time of the actual assault and I find his testimony to have no bearing on any defence raised by the defendant.

20. Defence last witness Collen Yawur is a nursing officer attached to Dapu Clinic and his testimony covers what took place at the clinic when victim was brought in for medical attention. He stated that he was the one who treated him and that he had made no medical report of the victim. He also strongly stated that at the time victim was brought in, he appeared to be very intoxicated so he had to delay treatment until he was sober.

21. Witness was cross-examined, however, most of the outcomes I consider to be irrelevant and I need not restate the same.

22. Defence closed its case after the above witnesses’ testimonies were received into court with no submissions made.

RELEVANT ISSUES

23. The issues of law that arise in the present case therefore are:

1. Did the defendant directly apply force of some kind to the person of the complainant?
   
2. Did the complainant consent to what the defendant did?
   

100. Does the defence of provocation apply in this case?
     

COURT’S ANALYSIS

24. The prosecution is bound to ensure they dispense with the requirement of proving their case against the defendant beyond reasonable doubt. On the contrary the defence bears the challenge of creating doubt by any means to defeat any attempts to establish the respective elements convincingly.

25. The first issue of did the defendant directly apply force of some kind to the person of the complainant requires me to consider the evidence and identify within the respective versions the place, time, date and the circumstances that both where present giving rise to the allegation. It is not contested that, the alleged assault occurred at Reptiles, on the main street road in front of the police single barracks, the date was 10^th July 2021 and the time was between 2:30am to 4am in the early hours of the morning. It is also not contested that, the wife of the victim was up at the police single barracks drinking beer with the defendant and others and that the victim upon being told of her whereabouts went over to check on her.

27. It is at this point of events that differing testimonies were provided, according to the prosecution, the defendant come down with one Cotliva Kilis and confronted the victim at the main street road in front of the single barracks. Defendant picked up a stone, banged it repeatedly on the victim’s head and then punched him causing him to fell unconscious to the ground. Cotliva fled after witnessing this and defendant went back up the barracks. Victim was than assisted by his wife Ruth. The defence claimed that, defendant came down to approach the victim with Raphael after hearing him swearing at them. He approached victim and told victim to come quietly and talk to them, victim was so drunk that he resisted, defendant tried to stop but he fell and was knocked out cold. Defendant and Raphael went back up the barracks and told Ruth to go and assist her husband the victim.

28. In deciding which version of facts is to be accepted as the version of truth, I am guided by Her Honor Davani J’s reasoning in The State v. Jacob Dugura Roy [2007] N3137, were she mentioned at paragraph 36 the following observations;

“the truth is not easy to find and the court has to always do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension than what is illogical or plain fallacy. That is why there is an added safety valve in the criminal law, which requires that the court must be satisfied beyond reasonable doubt of guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused.”

29. I am inclined to accept the version provided by the defence as it appears to be against my comprehension on what is expected to happen taking all present factors into consideration, the probability of events, that is, all versions of events confirmed that the defendant consumed alcohol from early evening of the previous day till the material time of his confrontation with the victim. Also he knew that Ruth was the wife of the victim, having attended to her complaint and even getting victim’s number from her and calling him. Further, Ruth was in his company at the single barracks up to the time he confronted the victim and also there is enough evidence to say that she stayed on with him afterwards. I will accept under these circumstances the version of the prosecution and hold that the victim approached defendant at the single barracks to get him to release his wife Ruth to him, defendant refused to do so and in the event assaulted the victim by punching him on his face which resulted in him falling to the ground, as a result of the fall victim sustained injuries to his head when his head came into contact with stones on the ground. I have viewed the stone in court and cannot confirm dried blood on it therefore I cannot take into consideration the version put forth by the victim and his witnesses that a stone was used by the defendant to hit him on the head. However, what I accept is sufficient enough to confirm that the defendant applied force of some kind to the person of the victim.

30. And now coming to the second issue of whether the victim consented to what the defendant did to him, I would say no as all the version of events provided no reasonable justification for what the defendant did to the victim, there is in my accepted view, no room for consent as the action of the defendant at all material times promote his ill intended motive and that is to connive adulterously with the wife of the victim.

31. As for the last issue of whether the defence of provocation apply justifying the actions of the defendant. Answers to issue one and two makes it difficult to find any form of provocative act on the part of the victim, therefore I must say no and accept that no provocation was present at the time of the assault.

32. The above concludes my findings insofar as the identified issues are concerned with. I will now proceed to hand down my findings on whether the prosecution has proven their case beyond reasonable doubt against the defendant or whether there is any doubt present on the elements to hold otherwise.

FINDINGS

33. From the above analysis of the identified issues, I am satisfied and find in favor of the prosecution that they have proven all elements of the offence as provided for under Section 6 of the Summary Offences Act beyond reasonable doubt. I will therefore return a verdict of Guilty and enter it against the defendant.

VERDICT

34. The defendant Norman Kanawo is found guilty on the charge of Unlawful Assault pursuant to Section 6 of the Summary Offences Act, as such a Verdict of Guilty is returned for him in favor of the prosecution.

SENTENCING

35. I will proceed to sentencing of the Offender. The offender through his allocutus has shown remorse and is willing to compensate the victim for the injuries he inflicted on him. Prosecution through presentation of the offender’s antecedent confirms that he is a serving member of the Royal Papua New Guinea Constabulary attached to Vanimo Police Command and he is a first time offender. As for the factors in aggravation and mitigation, I find the factors in aggravation outweigh those in mitigation. However, it is a relevant factor to consider and I will take it into consideration the actions of the Victim’s wife Ruth in the whole context of the material facts. She in my view was the one who influence the outcome of what happened as she was willingly participating in all the events leading up to the time of her husband’s assault by the offender. She again in my view is the instigator of this unfortunate event that lead to her husband’s assault.

36. Taking all the factors into consideration, I see it not necessary for a pre-sentence report to be conducted as through the cause of the trial I am satisfied that I have all the necessary factors for my consideration and I am therefore prepared to hand down what I consider to be an appropriate sentence for the offender.

37. The offender is sentenced to 6 months imprisonment term, which will be wholly suspended with him required to be placed on Good Behavior Bond for a period of 1 year and pay as compensation to the victim K2000.00 within two (2) months from today’s date.

MISCELLANEOUS ISSUES

38. It is worth mentioning the Police Act disciplinary provisions as I find it relevant to avoid instances of double punishment. Section 33 of the Police Force Act 1998, states and I reprint as follows:

“33. PERSON CONVICTED OF CRIMINAL OFFENCE

(1) Subject to Section 34, no person who has been convicted in any court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the force.

(2) A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the force.

39. The above provision in my view only becomes relevant when a member of the police force is convicted and sentenced to a term of imprisonment which he is required to serve in whole or the offence concerns an act of dishonesty. I have in my learned assessment relied on Section 132 of the District Courts Act, which more specifically at subsection 1 (e) empowers me to not enter a conviction on the offender, instead place him on good behavior bond and impose upon him a condition to pay K 2000 as compensation to the victim. Therefore, in taking that approach Section 33 of the Police Force Act becomes non-applicable by operation of law.

40. I hereby issue the following orders to conclude this matter.

COURT ORDERS THAT:

A. Defendant is found Guilty and a verdict of Guilty returned and entered against his name after completion of trial.

B. Pursuant to Section 132 (1) (e) of the District Courts Act, no conviction is entered with the offender sentenced to 6 months imprisonment, wholly suspended and replaced by a 1 year Good Behavior Bond and a condition that offender pay within 2 months from today’s date K2000 as compensation to the victim.

C. Any breach within the Good Behavior Bond period by the offender and his not compliance with the condition to pay compensation will automatically warrant his commitment to serve 6 months imprisonment term.

D. Bail refunded.