Police v Gware [2022] PGDC 112; DC9051B (26 October 2022)

DC9051B

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY COURT JURISDICTION]

SUM 333 of 2022
BETWEEN

POLICE
Informant

AND

MISSIAN GWARE
Defendant

LAE: J MOROG

2022: 11, 18 March, 29 April, 17 August, 29 September and 26 October 

CRIMINAL- VERDICT – USE OF THREATENING WORDS – ENCOUNTER – PRECEDED BY LAND ISSUE & PENDING VILLAGE COURT SUMMONS – BREACH OF BROWN & DUNN RULE – DEFENCE OF PROVOCATION – CIRCUMSTANCES OF THE CASE

Cases Cited
SCR No 6 of 1984; Re Provocation [1985] PNGLR 31
State v Agua [2009] PGNC 243

References
Summary Offences Act

Counsel

SGT SAKARIAS ALBERT, for the PROSECUTOR

MAIK KARU, for the Defendant

26 October 2022

1. J MOROG: This is a case where the complainant and the defendant had a pre-existing land issue and a related village court case pending when they had an encounter at a fuel service station where words were uttered and gestures made. The complainant hails from Boana in Nawae District and he is a resident at Malahang in Lae for 20 to 30 years. The defendant is a local at Lae from the Aihi People who own land around the Malahang area. The defendant is the Chairman of their Land Group and he has taken the complainant to village court for selling a parcel of land belonging to his people of Aihi

The charge

2. The defendant was charged that he on the 12^th day of February 2022 at Snack Bar Service Station in Lae, Morobe Province did use threatening words towards another person by the name of Hendrick Singin FUA (hereafter the complainant) and as such his actions contravened section 7 (b) of the Summary Offences Act 1977.
3. The charge is titled Provoking a Breach of Peace and the elements of the offence when charged specifically under paragraph (b) shall be; a person; use of threatening, abusive or insulting words; with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place...

Trial

4. On the 11^th of March 2022 the trial commenced and the prosecution called Mr Hendrick Singin FUA as their only witness and then rested their case so the Court adjourned for the defence case to resume on the 18^th of March 2022.
5. On the 18^th of March the defendant made his submission via his counsel that there is no case for him to answer which counsel filed a written submission and the court further adjourned for the prosecutor to respond to the defence submission. The prosecution filed their written submission on the 24^th of March 2022.
6. On the 29^th of April 2022 I ruled that the defendant had a case to answer and so the trial resumed after several adjournments due to the national general elections as well as the unavailability of the Police Prosecutor due to duty travels.
7. On the 17^th of August 2022 the trial resumed and the defendant and is only witness Mr Hanson Simon gave sworn evidence and we adjourned for submissions which was heard on the 26^th of September 2022 after parties filed written submission.

Prosecution Case

8. The prosecution called only one witness and he is the complainant in this matter. His evidence was that on that date he was with his mechanic by the name of Silas and another brother who drove them after fixing his car they came to the Snack Bar Service Station (Station) to refuel between the hours of 11am to 12noon.
9. At the Station he stood outside while refuelling and that was when the defendant came in his white open back vehicle. The defendant while seated in the car saw him and shouted You! You! The defendant also pointed at him and said “bai mi kilim yu” in pidgin meaning “I will kill you”
10. Complainant said the defendant made a hand gesture of a pistol and pointed at him and also the defendant said he had bolt cutter and other things in his car and also that he will organise his boys too. The defendant also said it was him in a previous incident that he bumped the gate to the complainant’s premises.
11. Complainant further testified that the defendant did not respect the lawyer Hanson who was with the defendant in the car in the driver seat. While the defendant said those things the lawyer was texting or emailing on his phone and he (complainant) knows the lawyer too.
12. The complainant concluded his testimony saying he was scared that the defendant may have weapons in the car so he (complainant) just stood there.
13. Complainant explained that he was given village court summons on the 9^th of February 2022 summoning him to appear the next day but he asked them to defer the case to Monday 13^th February 2022 because he had some prior commitments to attend to. Meanwhile on the 12th of February 2022 he was threatened at the Station.

Defence Case

14. The defence did not take issue with the words uttered as claimed by the prosecution witness or the gesture demonstrated by the witness but they rather put their case that there was a land dispute between the defendant and the complainant that was ongoing and pending before the village court of Malahang that provoked the defendant to acted in that manner.
15. The defendant gave sworn evidence. I will only discuss the pieces of evidence that were put to the complainant and not those that were not put in accordance with the Brown and Dunn rule.
16. In essence the defendant said that he was with Mr Hanson Simon at Malahang and they drove to the Station to refuel and he saw the complainant and he called out to him about why he sold the land which is not his land to sell.
17. All this time the defendant was seated in the crew side while Mr Simon was in the driver seat while he was talking to the complainant. He was talking out loud because they were distance apart. He was angry with the complainant because of the sale of the parcel of land at Malahang.
18. Defendant denied that he said words to the effect that he will kill the complainant. He put a version which was not put to the complainant but for the sake of completeness I note here that the defendant said he only said that if the complainant had sold the land in the highlands region of PNG they would have killed him already. With respect to the bolt cutter he said he only said that he had bolt cutter in the car and he will cut the chain to the complainant’s gate. He denied saying he bumped the gate in a prior incident.
19. Mr Hanson Simon gave sworn evidence. He said he was there and he knew both of them so he just sat there and said nothing. He supported the version of utterances testified to by the defendant much of which was not put to the prosecution in breach of the Brown and Dunn rule hence I do not dwell on those aspect here.
20. He said at the Station they were about 3 to 4 meters apart and argued as gentleman with respect to each other. The voice of the defendant was high and aggressive from his distance to the complainant.

Finding

21. I find that the defendant hand reasons to be angry toward the complainant for selling the land and not attending the village court and when he saw the latter he threatened to kill him and also to cut the lock and chain of his premise.
22. Then I ask whether in these circumstances the defence of provocation applies to exonerate the defendant.
23. I take guidance from the case of SCR No 6 of 1984; Re Provocation [1985] PNGLR 31 that the defence of provocation can apply to summary offences such as use of threatening words just like unlawful assault. This is an assault too but verbal in the sense of insulting words.
24. The defence of provocation is an excusatory defence which basically means an excuse for criminal responsibility or what the accused has done.
25. In this case the complainant conceded that he sold the land as per Exhibit D1 the Customary Land Sale Agreement. He denies that the Defendant is a Land Owner. He also conceded that he was given summons to appear at the Malahang Village Court but he asked them to defer. The defendant also conceded that he was angry about the land sale and the non-attendance of the court which he summoned the complainant to attend.
26. The defended did establish provocation and the prosecution has the onus to disprove it. It was held by Cannings J in State v Agua [2009] PGNC 243 that once the accused puts evidence of provocation the onus rests on the prosecution to disprove the defence.
27. Section 267 (2) (b) of the Criminal Code says that any question, whether or not in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, is a question of fact.
28. In this case I find that land issues are very sensitive in PNG custom and the act of selling it is provocative enough in this case where the defendant is the chariman of the land owners in Aihi and the complainant is from Boana which is far away from the Aihi land. In addition to that the complainant was given a summons for that very issue but he did not attend court claiming that he asked for and adjournment.
29. In cross-examination of the defendant it sufficed that when the defendant saw the complainant at the station he was angry because he (the complainant) lied to the village court magistrates that he was out of the province and could not attend court. This coupled with the fact that he has sold the land is sufficient provocation to excuse the defendant for his conduct at all material times.
30. I further ask myself whether the provocation in the circumstances of this case sufficient to exonerate the defendant?
31. The defence was raised as early as the cross-examination of the complainant and further during the examination in chief of the defendant and his cross-examination hence the onus was on the prosecution to negate the defence. The prosecution has failed to discharge that onus hence I uphold the defence of provocation.
32. Therefore I find the defendant not guilty and discharge him accordingly and further order that his cash bail of K600.00 shall be refunded forthwith

33. Orders accordingly:

1. Defendant is found not guilty

2. K600.00 Bail shall be refunded to the defendant forthwith.

3. Defendant is discharged.

Lawyer for the Complainant POLICE PROSECUTION

Lawyer for the Defendant DANIELS & ASSOCIATES LAWYERS