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State v Turana [2003] PGDC 38; DC462 (21 June 2003)

DC462

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 40, 41, 42 & 43 OF 2003

The State
Complainant

V

Lex Turana
First Defendant

Brisco Vapa
Second Defendant

Kwikila: Bingtau - D.C.M.
2003: 4th, 18th, 27th,
1st, 29^th; 20th May;
11th, 17th, 21st June

Criminal Law: Summary Offences Act:-Unlawful Assault S.6(3) Without Reasonable Excuse Possess Offensive Weapon - S.12 (1) (b) - Used Threatening Words whereby a Breach of Peace was likely to take place - S.7 (b).

Practice & Procedure:- Defendants charged separately must consent to a Joint Trial -At the end of the State's case, the Court had duty to announce whether Defendant has case to answer to the charge or not.

In all Criminal cases, the Prosecution always bears the burden of proving case beyond reasonable doubt.

In all Criminal cases, when sentencing a convict, the Court must consider the terms of the Criminal Law (Compensation) Act 1991.

Cases Cited:
Kereku -V- Dodd [1969-70] PNGLR 176
Cornish -V- Like [1978] PNGLR 56
The State -V- Rape [1976] PNGLR 96
John Jaminan -V- The State (No: 2) [1983] PNGLR 318
The State -V- Peter Kose Wena [1993] N1184

Counsel
SIC George Vetari for the State
Defendants Lex Turana & Brisco Vapa in Person.

JUDGEMENT

INTRODUCTION:

This is a defended case where two defendants Lex Turana and Brisco Vapa were charged separately on two counts each by the Kwikila Policeman SIC Paul Waim. The charges against each defendant are namely that:-

1. Lex Turana was charge for one Count for Unlawful Assault upon Tony Diro under Section 6(3) S.O. Act and the other for using threatening words namely I will kill you, upon Tony Diro under Section 7(b) Summary Offences Act.

2. Brisco Vapa was charged for one count for without reasonable excuse had in his possession offensive weapon namely bushknife under S. 12(1)(b) S.O. Act and the other for Unlawful Assault upon Tony Diro under S. 6(3) S.O. Act.

The alleged incidents all happened on the 15th of February, 2003 at the Deugolo village Police roadblock. Both defendants pleaded not guilty to each of their charges. The Court conducted joint trial with the defendants consent.

FACTS:

Briefly the facts as I found them from the sworn evidences adduced from the Prosecution and the defence shown that on the 15.02.03 at Deugolo village roadblock, defendant Brisco Vapa had unlawfully assaulted Tony Diro and had without reasonable excuse had in his possession an offensive weapon namely bushknife. For defendant Lex Turana, he used threatening words namely I will kill you to Tony Diro and provoking a breach of peace then fight with Tony Diro.

ISSUES:

1. Whether defendant Lex Turana used threatening words at Tony Diro?

2. Whether defendant Lex Turana unlawfully assaulted Tony Diro?

3. Whether defendant Brisco Vapa unlawfully assaulted Tony Diro?

4. Whether defendant Brisco Vapa without reasonable excuse possessed offensive weapon?

LAW:

(a). The case authorities applicable are:-

1. Kereku -v- Dodd [1968-70] PNGLR 176. The Court held that joint trial of defendants charged separately of offences be held with their consent, if not it will amount to injustice.

2. R -v- Dodd [1971-72] PNGLR 255 and The State -v-Rap [1976] PNGLR 96. The Court held that a defendant should not be required to make any defence unless the prosecution has make out a case against him. Where there is no evidence to prove an essential element of the alleged offence or where the evidence adduced by the prosecution has been discredited as a result of cross-examination or is so clearly unreliable that no reasonable tribunal could safely convict on it, the Court should dismiss the charge.

3. John Jaminan -v- The State (No: 2) [1983] PNGLR 318. The Court held in that case that, at the end of the day, the position is always that, has the prosecution proved it's case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and or the defence witness, doubt had been created then a verdict must be returned for the accused.

4. The State -v- Peter Kose Wena (1993) Nl184. The Court held that in every Criminal case, when the National or District Court sentences a convict, the term of the Criminal Law (Compensation) Act 1991 must be considered. Further if the Court considers, as a punishment to be ordered then, it should order compensation and order default penalty.

The Statute Law applicable are:-

1. Section 6(3)(4) Summary Offences Act:-

"6. Assault

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

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two years.

(4) Where a Court convicts a person of an offence against Subsection (3) it may order him to pay (a) to the person, in relations to whom the offence was committed, such amount by way of compensation for bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just".

2. Section 7(b) Summary Offences Acts provides:-

"7. Provoking a breach of the peace. A person who (b) uses threatening, abusive or insulting words with intent to provoke a breach of the peace or by which a breach of peace is likely to take place is guilty of an offence.

Penalty: A fine not exceeding K300.00 or imprisonment for a term not exceeding one year.

3. Section 12(1)(b) Summary Offences Act:-

"12. Carrying Weapons.

(1) A person who without reasonable excuse (b) has in his possession, custody or control any offensive weapon is guilty of an offence.

Penalty: A fine not exceeding K2,000.00 or imprisonment for a term not exceeding five years.

4. Section 2 Summary Offences Act:-

"2. Burden of proof of lawful excuse.

Where under the provision of this Act or any Act, if done without lawful excuse or lawful cause is an offence, the burden of proof, that, the act was done without lawful excuse or lawful cause, as the case may be, is on the person charged with the offence".

APPLICATION OF THE LAW TO THE ISSUES & CONCLUSIONS:

The two defendants were jointly tried on all of the four charges with their consent on the basis that, the four charges arose from the same place namely Deugolo village roadblock and same date 15th February, 2003. The case authority of assistance on the point was the case of Kereku v- Dodd Supra. Because defendants have consent to a joint trial of their charges the Court is of the view that no injustice was caused to them by not affording them their rights to have their cases tried separately.

In an attempt by the State to prove the four charges against the two defendants, the Police Prosecutor called four witnesses namely Tony Diro, Diro Kapi, Reserve SIC Joseph Bowie and Regular SIC Paul Waim, who all gave sworn evidence except for Diro Kapi who gave Un-sworn evidence on the basis that he was in the Court Room when 1st witness Tony Diro gave evidence.

1). State's Case.

The first issue the Court had to answer relates to the first charge of Lex Turana under Section 7(b) of the Summary Offence Act. To prove that charge, the State had to establish the following elements namely; 1. That on the 15.02.03 at Deugolo defendant used threatening words namely I will kill you to Tony Diro, and 2. that the said threatening words were likely to provoke breach of peace. Scorn evidence from Tony Diro show that on the 15.02.03 at the Deugolo village Police roadblock, the defendant had told him, you know I am the father of Magi Highway where ever I see you, I will kill you. The defendant had then punched him on his left jaw. Then Brisco Vapa with other passengers from the PMV bus also hit Tony Diro. On cross-examination, the defendant put his defence to Touy Diro that because Tony Diro punched him on his face without any reason, he threatened him with the alleged threatening words. The witness Tony Diro had maintained that it was the defendant only who had' used the threatening words at him then hit him.

The others joined him to hit Tony Diro. However, the third State witness Reserve SIC Joseph Bowie's evidence, when cross-examined by defendant show that Tony Diro had punched the defendant first because he was provoked by the defendant. He does not say how the defendant provoked him. The evidence in chief from Joseph Bowie, plus other State witness Diro Kapi and Paul Waim do not show any evidence on this issue. The Court then considered the evidence and inferred that, there is sufficient evidence showing that on the 15.02.03 at Deugolo roadblock, the defendant unprovoked by Tony Diro used threatening words at him, namely that; "I will kill you". Tony Diro was provoked by the defendant by the use of the threatening words so he punched the defendant as Joseph Bowie's evidence show. Then the defendant and others jointly hit him. Therefore the end result is that the Court found the State established both elements of the charge under Section 7(b) of the Summary Offences Act, against the defendant. The defendant has case to answer to the alleged charge.

The second issue relates to the defendant Lex Turana' second charge of unlawful assault upon Tony Diro under Section 6(3) of the Summary Offences Act. To prove the charge the State had to establish the following elements namely; 1. That on the 15.02.03 at Deugolo roadblock defendant punched Tony Diro, 2. That the defendant had no lawful excuse to punch Tony Diro. Sworn evidence from Tony Diro show that on the 15.02.03 at Deugolo road block, the defendant had threatened to kill him, then punched him on his left jaw. Then other passengers from the PMV bus in which the defendant drove plus Brisco Vapa joined in and hit him. The State's third witness Reserve SIC Joseph Bowie's sworn evidence in chief show that defendant hit Tony Diro at Deugolo road block on the 15.02.03.

However, when cross- examination by the defendant on who was the first to throw his hand witness told the Court that Tony Diro the complainant was the 1st to throw his hand at the defendant as a result of being provoked, by the defendant. Furthermore, this witness told the Court, he was with Tony Diro and defendant when he saw what happened.

The other State witnesses Diro Kapi and SIC Paul Waim's sworn evidence do not show any evidence on this issue.

The Court then examined the above said evidences and made the following inferences. That defendant threatened Tony Diro to kill him. Tony Diro was provoked to punch the defendant first, according to Joseph Bowie's evidence upon cross-examination by the defendant. The defendant retaliated and hit Tony Diro, then the two fought. There is evidence of fighting and not for unlawful assault. Defendant and Tony Diro could be possibly be charged for lighting and not defendant alone for unlawful assault. Therefore the end result is that, the State established only the first element of the charge, namely defendant punched Tony Diro but failed to established the second element of the charge namely that defendant had no lawful excuse to punch the complainant Tony Diro. The defendant has no case to answer to the alleged charge.

The third issue relates to the defendant Brisco Vapa's first charge of unlawful assault upon Tony Diro. In this charge the State had to establish the following elements namely that; 1. On the 15.02.03 at Deugolo defendant punched Tony Diro; 2. That the defendant unlawfully punched Tony Diro.

Sworn evidence from 1st State witness Tony Diro show that after defendant Lex Turana came threatened to kill him and punched him, defendant Brisco Vapa also came punched him, plus other passengers from the PMV bus that Lex Turana drove. He had not provoked Brisco Vapa to punch him. Upon cross-examination he maintained his evidence. The State's other witnesses Reserve SIC Joseph Bowie and Regular SIC Paul Waim show that defendant Brisco Vapa had punched Tony Diro with others on 15.02.03 at Deugolo. Tony Diro had not provoked him to punch him. The State's second witness Diro Kapi's unsworn evidence does not show any evidence on this issue.

From that State's evidence adduced that Court examined it and draw the following inferences namely that; on 15.02.03 at Deugolo defendant without being provoked by Tony Diro punched him in support of the threatening words and punch thrown at Tony Diro by defendant Lex. Turana. The complainant Tony Diro had not retaliated and hit the defendant. Therefore the end result is that the State established the two elements of the offence namely that defendant punched Tony Diro at Deugolo on the 15.02.03 and that defendant had no lawful excuse to punch Tony Diro. Tony Diro did not provoke defendant or retaliated and hit defendant so defendant has case to answer to the charge.

The fourth issue relates to the defendant Brisco Vapa's second charge of without reasonable excuse had in his possession offensive weapon namely a bush knife under Section 12(1)(b) Summary Offences Act. For this charge, the State had to establish the following elements namely that; 1. On the 15.02.03 defendant had in his possession an offensive weapon at Deugolo roadblock and 2. that defendant had no reasonable excuse to have the offensive weapon in his possession namely bush knife.

The State's 1st witness Tony Diro's sworn evidence show that after the defendant punched him, he move back to the bus and took a long bush knife and waved it towards him as he came up. However, the village elders stopped him and took off the bush knife from defendant. The second State's witness Reserve SIC Joseph Bowie's sworn evidence also show that on the 15.02.03 at Deugolo, the defendant punched Tony Diro, then took stone attempted to hit Tony Diro but missed and hit his leg. Then defendant went to the bus took long bush knife came up against Tony Diro, but the village elders took the knife off from the defendant. The fourth State witness Paul Waim's sworn evidence too show that, he saw defendant take a long bush knife and walked up towards the complainant Tony Diro. He tried to take the knife off him but the village elders assisted and took the bush knife off from the defendant. The witnesses were all cross-examined by the defendant but they maintained their evidence as they told the Court in their evidence in chief.

The State witness Diro Kapi's evidence does not show any evidence on this issue. The Court then examined the State's evidence and draw the following interferences. That on the 15.02.03 at Deugolo defendant after hitting Tony Diro and attempting to stone him, went back to the bus he rode on. He took a long bush knife, which is no doubt an offensive weapon, capable of injuring Tony Diro or any person, if it is swung at him. Defendant moved the bush knife and came up towards Tony Diro. That shows that defendant intended to use the bush knife against Tony Diro. He was not going to the garden, or chopping firewood or other lawful activity with the bush knife. Therefore the end result is that the State established the two elements of the charge namely that; 1. On the 15.02.03 at Deugolo defendant had in his possession long bush knife an offensive weapon and 2. that defendant had no reasonable excuse for him to possess the bush knife. Defendant intended to use and commit offence against Tony Diro with the bush knife which is an offensive weapon so defendant has case to answer to the second charge as well.

2) Whether Defendants have Case to Answer.

The procedure in every Criminal Cases is that after the close of the State's case, the Court has a duty to consider the State's evidence and decide whether, all the elements of the offence against the defendant had been established and that the defendant be asked to make his defence call witnesses. Usually in cases where Defence Counsel represent defendant, Counsel makes No Case Submission when counsel considers that, the State had not made out a case against the defendant. But in this case the defendants are Unrepresented by Counsel so the Court had to decide without assistance from counsel. The case authorities to assist on this point are these two cases namely R and Dodd Supra and The State -v- Rape Supra, which stand for -v- Dodd Supra proposition that, defendant be asked to make his defence only after the State had established all the elements of the charge.

The elements of all the four charges laid against the two defendants and the State's evidence from the four State witnesses Tony Diro, Diro Kapi, Reserve SIC Joseph Bowie and Regular SIC Paul Waim were all read, examined and discussed above.

Evidences adduced from the said four State witnesses, the Court found that, the State established all the elements of the offence under Section 12(1)(b) and S. 6(3) Summary Offences Act against defendant Brisco Vapa. But for defendant Lex Turana the Court found that State established all the elements of the offence under Section 7(b) but not for the offence under Section 6(3) of the Summary Offences Act. Therefore follows that, the defendant Brisco Vapa has a case to answer to both of his charges while defendant Lex Turana has case to answer to the charge under Section 7(b) of the Summary Offences Act and not case to answer to the charge under Section 6(3) Summary Offences Act, therefore that charge be dismissed and defendant discharged.

3) Defendants Case.

The Court announced that defendant Brisco Vapa, you have to answer to both charges under Section 6(3) and 12(1)(b) of the Summary Offences Act. Defendant Lex Turana, you have case to answer to only one charge under Section 7(b) of the Summary Offence Act. Both defendants submitted that they will each give their evidence then jointly call one witness who is a Policeman.

Defendant Brisco Vapa gave his sworn evidence first. He told the Court about him asking a boy who sat at the back of Tony Diro's motor vehicle and showing insulting gesture at him, and others who rode in the PMV bus that Lex Turana drove, when they stopped at the Deugolo roadblock on 15.02.03. When the boy denied and argued they fought. When defendant was cross-examined by the Prosecutor, he denied assaulting Tony Diro or carrying a bushknife towards Tony Diro.

After him defendant Lex Turana gave sworn evidence too. He told the Court that on the 15.02.03 at Deugolo roadblock, he went ask Tony Diro for the boy who had used insulting gesture at him and others in the bus as they over took them at Tubusereia. But Tony Diro punched him so he retaliated and hit him too then the two of them fought. On cross-examination by prosecutor, defendant denied using threatening words against Tony Diro to provoke him.

The defendants could not call their witness a Policeman, because he was transferred from Port Moresby to Wewak and they could not afford to bring him to Kwikila to give evidence for them. Therefore the defendants closed their case.

4. Conclusion.

The Court had already found from the evidences adduced by the State that the defendant Brisco Vapa has case to answer to both charges under Section 6(3) and 12(1)(b) of the Summary Offences Act, which the defendant Lex Turana has case to answer only to the charge under Section 7(b) of the Summary Offences Act. After the close of the defendant's case, the Court had to consider all the evidence adduced from the State and defence and pronounce the final verdict.

A case of assistance in deciding the final verdict in any Criminal proceeding is the case of John Jaminan -v- The State (No: 2) Supra, where the Court held that at the end of a Criminal case, the position is always that, has the prosecution proved it's case beyond reasonable doubt? And if a doubt had been created from either the prosecution or defence witness then a verdict must be returned for the defendant.

First, Brisco Vapa's sworn evidence show that he denied punching Tony Diro and too denied carrying a long bush knife towards Tony Diro. The State had already established all the elements of the offence under Section 6(3) and 12(1)(b) Summary Offences, Act, the defendant did not prove the defence of lawful excuse under Section 2 of the Summary Offences Act and discredit the prosecution's case. There was no doubt created from the State's witness in the Court's mind, that the State's witness have framed or fabricated stories against the defendant, that they saw him hit Tony Diro, then carry long bush knife towards Tony Diro on the 15.02.03 at the Deugolo Police road block. Therefore the Court found the State had proven it's case under Section 6(3) and 12(1)(b) of the Summary Offences Act, beyond reasonable doubt so defendant is found guilty and convicted of both counts.

Second Lex Turana's sworn evidence show he denied using threatening words to kill Tony Diro on 15.02.03 at Deugolo Police roadblock. However, the Court found that the defendant had not discredited the State's case by proving his defence of lawful excuse under Section 2 of the Summary Offences Act. There was no doubt in the Court's mind that the State's witness have fabricated their story against the defendant, that defendant had threatened by words to kill Tony Diro so as a result Tony Diro was provoked to punch his face and then he retaliated by hitting Tony Diro. Therefore, the Court found the State had proven it's case against the defendant for the charge under Section 7(b) Summary Offences Act, beyond reasonable doubt so defendant was found guilty and convicted of the charge.

BEFORE SENTENCE:

Before Sentence, the Police Prosecutor reported the defendants Antecedent Report and Prior Conviction Reports. They are first, for defendant Brisco Vapa. He is single, unemployed, though works as an off sider for his inlaw's PMV bus, his inlaw does not pay him wages. He resides with his parents at their Gunugau village. He has no prior convictions report. Second for Lex Turana, he is married with 3 children, resides at his Gunugau village, unemployed, though drives his inlaw's PMV bus, his inlaw does not pay him wages. He has no prior conviction report.

The Court then explained to the defendants the penalties, the Court may impose under Section 6(3), 7(b) and 12(1)(b) of the Summary Offences Act as already stated earlier and that the Court will also consider ordering compensation against them, where the Court thinks appropriate in each case as a punishment. The case authority in The State -v- Peter Kose Wena Supra, already stated earlier will give assistance in deciding whether compensation should be ordered as a punishment in each charge, under the terms of the Criminal Law (Compensation) Act 1991.

First Brisco Vapa submitted that, can the Court be lenient on me and place me on good behaviour bond because I have no money to pay Court fine. Second Lex Turana submitted that on compensation, I ask the Court to allow me to shake hands with Tony Diro outside of Court and for penalty under Section 7(b) S.O. Act, I ask the Court to order a Court Fine against me.

SENTENCE:

The Court then determined the appropriate sentences. Brisco Vapa the aggravating Factors against you are that:-

1) You have committed two offences on the same day

2) You failed to report the matter regarding the alleged insulting gesture shown to you and others by the boy who sat at the back of Tony Diro's vehicle but you instead took the law in your own hand by hitting the boy and after he and left you continued to hit the innocent Tony Diro though Police were on duty.

3) You have wasted Court's time to conduct trial by pleading not guilty.

4) You have not shown any remorse for the two offences you committed.

The Mitigating Factors in your favour are that:-

1) You have no prior convictions report.

2) You are unemployed villager and;

3) Many other persons were involved in assaulting Tony Diro but they were not arrested and charged together with you.

In balancing these two factors, the Court considers the appropriate sentences for you are these. As retribution to you and deterrence to others, for the charge under Section 6(3) Summary Offences Act, you are convicted and ordered to pay K200.00 fine by Friday 27.06.03 in default be imprisoned for four months in hard labour at Bomana Corrective Institution.

Further under Section 2 and 6 (1) Criminal Law (Compensation) Act 1991 and 6 (4) Summary Offences Act, you are ordered to pay K100.00 compensation to Tony Diro within one (1) month in default be imprisoned for one (1) in light labour at the Bomana Corrective Institution. For the charge under Section 12 (1) you are convicted and fined K100.00 in default be imprisoned for two months in hard labour at the Bomana Corrective Institution. Your K100.00 Court Bail be converted to Court fine. Compensation not appropriate in this case.

Lex Turana the Aggravating factors in this case against you are that:-

1) You failed to report the matter regarding the alleged insulting gesture shown to you and others by the boy who sat at the back of Tony Diro's vehicle but you instead took the law in your own hand by hitting the boy and after he had left you continued to threaten Tony Diro and hit him, though Police were there.

2) You have wasted the Court's time to conduct trial when you pleaded not guilty.

3) You have shown no remorse for the offence you committed.

The Mitigating Factors in your favour are:-

1) You have no prior conviction report.

2) You are married with 3 children.

3) You are unemployed.

4) Many persons were involved in hitting Tony Diro too but were not charged with you and Brisco

In balancing these two factors, the Court considers the appropriate sentence for you are this. As a retribution for you and deterrence for others, for the charge under Section 7(b) of the Summary Offences

Act, you are convicted and fined K200.00 default be imprisoned for four months in hard labour at the Bomana Corrective Institution. Further under Section 2 and 6(1) Criminal Law (Compensation) Act of 1991, the Court considered ordering compensation because the threatening words used by you amounted to defamation as defined under Section 2 and 3 Defamation Act. Court ordered compensation of K100.00 to be paid to Tony Diro within one month in default be imprisoned for one (1) month in light labour at the Bomana Corrective Institution.

The Court made Orders accordingly.

Sic George Vetari: Complainant
Brisco Vapa and Lex Turana: Defendants