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State v Enoch [2002] PGDC 29; DC450 (14 August 2002)

DC450

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 441 & 442 OF 2002

State
Complainant

V

Willie Enoch
Defendant

Goroka: Manue F
2002: 14th August

MANUE F: These are Summary matters where the defendant was charged for that on the 23rd February 2002 at ODYSEY Club did used incite words and unlawfully assaulted a Police officer while on duty Contrary to Section 9 (9) and 61 (1) of the Summary offences Act respectively.

The questions for ruling are whether the offences did take place.

Facts:

On the alleged date the defendant and others were at the dance place. That is at ODYSEY Club where they were enjoying the night.

The complainants who were all members of Police Mobile squad 12, attached to Goroka Police Station were on duty. They had checked on the club when they commenced duties where a dance was in progress. They advised the dance be closed at 2.00am or 3.00am. They did not specify whom in particular was informed and on whose directions the dance should be stopped.

When the Policemen returned the second time at about 3.00am the dance was still going on. The Commander of the squad then sent three of his men to the dance place to in order to see the Club Management so that the dance be halted. In the process of the Policemen carrying out instructions from their commander there was a confrontation between the Policemen and the Security guards.

Tear gas was then fired into the dance place. The dancegoers were forced out by the irritative effects on their eyes of the tear gas. The defendant was among them who came out. He and his witness had taken off their shirts, had them soaked in water and used them on their affected eyes.

Two versions of story are given once the defendant was out.

The Prosecution witness stated that the defendant and two others which included the defence witness were jumping about challenging to fight the Policemen. If is alleged that in the cause of defendant’s actions he incited others to fight the Policemen. The particular words he used are, "Yumi paitim ol Polisman ol husait". The defendant continued for few minutes and then he punched the Commander of the mobile squad. The defendant was then taken by Police by using some force and later charged.

The defence witness gave a different version. The defendant came out from the clubs toilet after taking off their shirts. They soaked their shirts and applied them on their irritated eyes. When they came out their eyes were badly affected that they lay on the grass outside.

The defendant then enquired why the Policemen had fired tear gas into the dance where there were a lot of people without any explanation. He and his witness were badly assaulted by the Policemen who had gone there in two car loads. The defence denied "inciting by words" and unlawfully assault on the Police unit commander who was on duty.

The case is decided on the facts which have been presented and it is a question of which Story the Court is to believe.

First of all, I have to state that there was no evidence as to why the Policemen warned the dance to stop. Was there an Order from the Provincial Liquor Commissioner? If so when was the direction given and what were the specifications or particulars of the Order?

Secondly, there was no better explanation as to firing of tear gas into a crowd of innocent people who were exercising their condition right, "freedom of privacy and movement."

In my view, no offence has been committed either by the crowd or any individual in the crowd for warrant Police in firing the tear gases. The actions of the Police although was for the purpose of stopping the dance was not reasonable. They had not approached the Club Management before taking such drastic actions.

I am of the belief in all of the circumstances that the defendant was badly affected by the tear gas. He wanted to know, like anyone else who would be in such situation, why Police had fired tear gas into an innocent crowd. I do not think he was in a mood to fight nor did he assault the Police mobile commander.

He was assaulted before he could do anything. He was assaulted when he questioned the actions of Police. I believe the defence version of the story.

For these reasons the Case be dismissed.