Police v Opa [2021] PGDC 183; DC7037 (15 December 2021)

DC7037

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

Sum No. 867 of 2021

CB No. 1440 of 2021
BETWEEN

THE POLICE
Informant

AND

PEGGY RONALD OPA
Defendant

Boroko: Seth Tanei

2021: 15^th of December
      

SUMMARY OFFENCE – Domestic Violence (Psychological Abuse) – s 6 (1)– Family Protection Act 2013.

PRACTICE AND PROCEDURE- Trial- Whether the Defendant committed an act of Domestic Violence (psychological abuse) – Elements of the offence discussed – Elements not proven – Defendant found not guilty.

PNG Cases Cited

NIL

Overseas Cases Cited
MM v PP [2014] WSFC 1

References

Oxford Paperback English Dictionary (2012 Edition)

Legislation

Family Protection Act 2013

Counsel

Senior Sergeant Peter Asi, for the Informant

Peggy Ronald Opa, the Defendants In Person

RULING ON VERDICT

15^th December 2021

S Tanei: This is a case where the Defendant pleaded not guilty to the charge of Domestic Violence (Psychological Abuse) contrary to section 6(1) of the Family Protection Act 2013.

2. The matter went for trial and trial concluded on 28^th October 2021.
   
3. Submissions on verdict were made on 1^st December 2021 after a number of adjournments.
   
4. This is my ruling on verdict.
   

CHARGE:

5. The Police allege that on 19^th May 2021 at Gordons Guest House, NCD, the Defendant committed an act of Domestic Violence namely psychological abuse towards another family member namely Dr. John Luke Opa her husband by humiliating him by sleeping with another man.
   

ISSUES:

6. Whether the Defendants actions amounted to psychological abuse.
   

THE LAW

7. Section 6 (1) of the Family Protection Act 2013 provides that;

DOMESTIC VIOLENCE OFFENCE.

(l) A person who commits an act of domestic violence is guilty of an offence.

Penalty: A fine not exceeding K5, 000.00 or imprisonment for a term not exceeding two years or both.

EVIDENCE

8. During trial, both parties opted to rely on Affidavits. They tendered their Affidavits through the witness stand and they were cross examined on the contents of their Affidavits.
9. Prosecution filed two (2) Affidavits;
   1. Affidavit of Abraham Tongi filed on 26^th July 2021 (Exhibit “P1”)
   2. Affidavit of Dr. John Lewa Opa filed on 26^th July 2021 (Exhibit “P2”)
      
10. The Affidavits are summarised as follows;
    1. Abraham Tongi

He is a relative of the Complainant. In his Affidavit he stated that he was at Gordons Guest House on 19^th May 2021. He said the family had suspected that the Defendant was having an Affair with another man who owned a Coaster Bus. He said he saw that Coaster Bus at Gordons Guest House. When he enquired about the owner of the bus he was told that the owner was with a Short Fat Tari Woman in Room 5. He then advised the Complainant of his discovery. Between 1 pm and 2pm, they approached the room with the help of police and saw the Defendant and the man getting dressed.

During cross examination, it was put to the witness that he did not see them doing anything and the witness maintained that they saw the Defendant and the man in the room.

2. Dr. John Lewa Opa

He is the Complainant in this matter. His testimony covered the background of his marriage with the Defendant. He also testified of the events of 19^th May 2021. He said he attended at Gordons Guest House with Police to find his wife the Defendant in an intimate position with another man and were getting dressed when they went in. He testified that the actions of the Defendant caused him trauma.

During Cross Examination, he said the Defendant’s action caused him trauma and mental stress.

11. The Defendant was the only one who gave evidence for the Defence. She relied on her Affidavits filed on 6^th July 2021 (Exhibit “D1”) and 28^th July 2021 (Exhibit “D2”)
    1. Peggy Ronald Opa

In her Affidavits she gave a background on her relationship with the Complainant. She stated that their relationship was filled with violence as she was the subject of violence by the Complainant. She stated that they had lived apart for more than six (6) years. She said that she came to Port Moresby from Kerema to buy supplies for her small business and booked into a room at Gordons Guest House. On 19^th May 2021, she was arrested at the Guest House with another man.

During cross examination, it was put to the Defendant that she was caught with another man. She did not deny this fact. However, she said that she and the Complainant had moved on despite not legally dissolving their marriage.

ANALYSIS OF EVIDENCE

12. The Prosecution’s story is that the Defendant was caught having sex with another man and that action caused the Complainant stress and trauma and this amounts to psychological abuse.
    
13. The evidence of both Police witnesses point to the fact that they caught the Defendant with another man in a room at Gordons Guest House. However, there is nothing to show that the Complainant was doing that over time. They also did not say that they caught the Defendant having sex with another man at that time.
    
14. The Defendant’s story is that she was the subject of domestic violence all throughout her marriage with the Complainant. She does not deny that she was in the room with another man on 19th May 2021 at Gordons Guest House. However she says that she had not been living with the Defendant and both of them had moved on.
    

UNDISPUTED FACTS

15. From the evidence, the following facts turn out to be undisputed;
    
    1. The Defendant and the Complainant are married.
    2. They had gone through martial problems throughout their marriage.
    100. The Defendant was caught in a room at Gordons Guest House with another man on 19^th May 2021.
    4. The Parties are not living together anymore but they are not divorced by law.
       

DISPUTED FACTS

1. The Complainant suffered psychological trauma and mental stress.
2. The Defendant had committed domestic violence (psychological abuse) through her action.
   

SUBMISSIONS

16. In submissions on verdict, the Defendant submitted that the allegation that she was caught sleeping with another man does not amount to domestic violence under the meaning of domestic violence under the Family Protection Act 2013. She said psychological abuse relates to a pattern of behaviour of a person that causes domestic violence on another member of the family.
    
17. Senior Sergeant Peter Asi of Police Prosecutions submitted that the Defendant had admitted that she was caught by the Police and the Complainant with another man in a Guest House and that is sufficient to show that she had caused domestic violence (psychological abuse) on her husband.
    

FINDINGS

18. In order for the Court to find the Defendant guilty of the Offence of Domestic Violence (Psychological Abuse), the Prosecution must bring in evidence to meet all the elements of the offence.
    
19. The elements of this particular offence are found in section 6 (1) of the Family Protection Act 2013. It provides that;
    

DOMESTIC VIOLENCE OFFENCE.

(l) A person who commits an act of domestic violence is guilty of an offence.

Penalty: A fine not exceeding K5, 000.00 or imprisonment for a term not exceeding

two years or both.

20. Section 5 of the Family Protection Act 2013 defines Domestic Violence and lists instances or actions that amount to Domestic Violence. Section 5 (1) of the Act provides that;
    

(1) A person commits an act of domestic violence if he or she does any of the following acts against a family member:

(a) assaults the family member (whether or not there is evidence of a physical injury); or

(b) psychologically abuses, harasses or intimidates the family member; or

(c) sexually abuses the family member; or

(d) stalks the family member so as to cause him or her apprehension or fear; or

(e) behaves in an indecent or offensive manner to the family member; or

(f) damages or causes damage to the family member's property; or

(g) threatens to do any of the acts in Paragraphs (a), (c) or (f).”

21. Section 5 (1)(b) of the Act provides for psychological abuse as a form of Domestic Violence.
    
22. Section 6 (1) of the Family Protection Act 2013 must be read together with section 5 (1)(b) to draw the elements of the Offence of Domestic Violence (Psychological Abuse). From these provisions, the following are the elements are drawn;
    1. A person - The Defendant
    2. Commits an act of Domestic Violence (Psychological abuse) – Must cause psychological abuse
       
23. The Prosecution must show that the Defendant committed psychological abuse on the Complainant.
    
24. Unlike other domestic violence cases, this case is one of psychological abuse.
    
25. It is important that we understand what amounts to psychological abuse as a form of Domestic Violence before discussing the matter further.
    
26. I have not come across any other case in this jurisdiction that dealt with Psychological abuse as a form of domestic violence.
    
27. I have also not come across any other case in this jurisdiction that defines Psychological abuse.
    
28. I therefore consulted the Oxford Paperback English Dictionary (2012 Edition) for the meanings of the words Psychological and Abuse.
    
29. From the dictionary, Psychological means “relating to the mind” and abuse means “to use badly or wrongly, to treat cruelly or violently or to speak to someone in an insulting and offensive way”.
    
30. Applying those meanings to the current situation, the second meaning of abuse is accepted and applied here. Hence, Psychological abuse would mean “Treating the mind cruelly or violently”.
    
31. With no PNG case law that clearly defines psychological abuse, I consulted Pacific Islands Legal Information Institute (Paclii) on website www.paclii.org and came across a Samoan Case that dealt with domestic violence. Although not binding, the meaning of psychological abuse is of relevance here. In the case of MM v PP [2014] WSFC 1, in dealing with domestic violence under their Family Safety Act 2013 (the equivalent of our Family Protection Act 2013), the Court held that;
    

“Emotional, verbal and psychological abuse means a pattern of degrading or humiliating conduct towards a complainant, including;

• Repeated insults, ridicule or name calling;
• Repeated threats to cause emotional pain; or
• The repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the Complainant’s privacy, liberty, integrity or security.” [Emphasis mine]
  

32. From the meaning given in the Samoan case mentioned above and the meanings in the Oxford Dictionary, it is my view that psychological abuse consists of repeated actions or insults and must be a pattern or trend shown towards the Complainant by the Defendant and such must cause the Complainant fear, humiliation and mental stress.
    
33. I will therefore apply this meaning to this case.
    
34. Here, the Police must show that the Defendants action is part of a pattern of insults aimed at the Complainant and such must cause him mental stress.
    
35. I have considered the evidence and I am of the view that the Defendant has not committed psychological abuse in this case. The evidence does not show a pattern of actions that constitute psychological abuse. Apart from showing that the Defendant was found with another man in a room at Gordons Guest House on 19^th May 2021, the evidence does not show that there was a pattern of repeated insults or acts of humiliation towards the Complainant by the Defendant in this case. There is also no evidence of the Complainant suffering mental or psychological trauma from repeated actions of the Defendant.
    
36. I am also of the view that this case is really a family court matter and not a criminal matter. It should not have been brought as a Criminal Complaint by the Police. It involves a married woman caught in a room with another man and this amounts to adultery.
    
37. I must also state here that the Police must also know the boundary between civil and criminal complaints. They must know what amounts to a criminal complaint and what is not. Some cases may have both civil and criminal implications. However, they are civil in nature. In this case, it is my view that it is a civil matter that should be dealt with at the family Court instead of filing a criminal complaint.
    
38. I therefore find that the Defendant has not committed an act of domestic violence namely psychological abuse in this matter.
    

CONCLUSION

39. By reason of the above, I find that the Prosecution has not proven its case beyond reasonable doubt as it has not satisfied the Court on all the elements of the offence of Domestic Violence (Psychological Abuse).
    

VERDICT

40. The following is the Verdict of the Court;
    
    1. Peggy Ronald Opa is found not guilty of the charge of Domestic Violence (Psychological Abuse) contrary to section 6 (1) 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 600 shall be refunded forthwith.
       

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person