DC158

PAPUA NEW GUINEA
IN THE DISTRICT COURT
HOLDEN AT BOROKO

B. NO: 1029 OF 2004
CB. NO: N/A Of 2004

BETWEEN

CONSTABLE ALBERT PURANE
-Informant-

AND:

JEFFERY LAMB
- Defendant-

BOROKO: P. PINOIPIA
2004: 11-19 NOVEMBER

DECISION

The defendant stand charged on two counts: -

1. 	That he on 5th March 2004 did assaulted the Complainant Julie Samai, contrary to Section 6 (3) of the Summary Offences Act Chapter No. 264 and

2. 	That he an 5th March 2004 did without reasonable cause did (discharge a firearm with intend to frighten a person contrary to Section 28 (3) (a) of the Summary Offences Act.

Both the State and defendant gave oral evidence through their respective witnesses.

The State alleged that the defendant had on 05th March 2004, without any reasonable cause discharged a firearm, namely a Police issued Pistol with intend to frighten a person and subsequently assaulted the Complainant. As a result of the assault, the Complainant (Julie Samai) sustained personal injuries to her and subsequently hospitalized. A medical report was rendered in court as exhibit evidence of the nature and extend or injuries suffered.
 
Hence the State evidence through its three witnesses was that the Complainant had dropped off her sister Alice Samai at Waigani Tokam Police Barracks, with two other ladies. The purpose of the visit was for Alice Samai to see the Defendant who is her husband and father of their child. The Child was sick as a result of sore head so had to see the Defendant for some financial assistance to buy medicine. Whilst Julie Samai remained in her car at the outside main road. Alice Samai and two other ladies went to the Barracks premises.

L	L

Upon reaching the defendant’s house, the two other ladies remained outside at the basement. Mrs. Alice Samai proceeded up the steps of the house of the door. She knocked on the door and someone answered. Alice Samai requested to see the Defendant who was inside his room.

Then upon sighting Alice at the door, defendant questions why she had gone there to see him. Alice told the defendant; she was there to see him about their sick child, for financial assistance.

The defendant does not like so Alice Samai is chased and pushed down the high steps until she lands at the base.

Alice then picks up, what witnesses described was a short louver blade frame and hit defendant on his shoulder.

Defendant ran back up the steps and into his house and comes hurriedly back to where Alice Samai and two other ladies are, fires the pistol into the air and with other free hand fights with two other ladies. This time Alice Samai and two other ladies seeing defendant with the pistol lie to the in fear whilst defendant continue to fight them force other people families of the TOKAM BARRACKS who coming through all directions upon hearing the gun shot to see for themselves what was happening. The complainant ran through the gate to investigate the gunshot to see if any of the three (3) ladies were injured by the gunfire.

She is been caught up at the entrance of the Barracks by the defendant who points the pistol against her ribs while in fear defendant using his other hand lifts her up and slam onto the ground, where she remain unconscious.

The families of the Tokam Barracks see Julie Samai lie on the ground, bring water, pour it all over her body and she wakes up feeling bad. She went to hospital and placed on medication.

This actions of the defendant gave rise to the court proceedings, which defendant stand charged on two counts as stated earlier.

The State have submitted that, the circumstances under which the defendant was placed at the material time did not warrant the defendant to discharge a firearm and to assault the complainant to an extent and manner he in fact did. Therefore he must be answerable to his actions.

The defendant gave evidence through its three (3) witnesses including him.

The defendant evidence was that on 5th March 2004 he was in his house at the Tokam Barracks, Waigani. He was awaken by Alice Samai’s knock at the door, when answered, she was there at the door veranda. I asked her to leave (due to two times past incidents) but instead picked up an arguments with me.

She refused to leave so I applied a reasonable force and pushed her down the steps of the house. When her friends saw this they retaliated and put up a fight. Alice Samai’s friend’s numbered between 15-20 people inside the Barracks. There were other members of the Policemen and their families present, and I felt quite embarrassed.

Alice went under the house picked up an iron piece and hit me on my (back) shoulder. I felt pain but did not decide to use force. I kept pushing Alice down the steps, when realizing this that her two friends and other crowd were mounting an attack on me. They proceed into the Tokam Barracks premises. Being under such a situation I had no other option to adequately defend myself other than to discharge my pistol into the air. Only than the attack stopped and the crowd dispersed. Most of them took cover behind a Mazda Ute packed outside the Barracks. I cannot recall Julie Samai being assaulted by myself. She may have sustained her injury elsewhere.

The defendant bas submitted that he at the material time "was placed under a situation, where he was going to be attacked by a huge crowd. Therefore had no option but to discharge the firearm to frighten the crowd and to disperse the mounting crowd as they were trespassing the premises.

I should not be punished for the wrongs alleged against me.

Having viewed both the State and Defence witnesses' evidence before the Court found the Defendant's actions in discharging the Firearm (pistol) in the manner he did and the subsequent assault on the female complainant, in my view lacked any legal basis and remains unjustified.

That is to say, the circumstances under which the defendant was placed at the material time he did not warrant the discharge of pistol, even only to frighten a person. Similarly the subsequent assault on the female complainant in my view lacked any legal basis and remain unjustified.

That is to say, the circumstance under which the defendant was placed at the material time did not warrant the discharge of pistol even only to frighten a person. Similarly the subsequent assault on the complainant could not possible be justified and therefore an unlawful assault.

The entire evidence before the court lacks any credible evidence to suggest that defendant was being attacked by the supposed crowd and that his life was in danger that he must discharge the firearm to disperse the crowd.

There were inconsistences in the defence evidence that he crowd consisted of 15-20 people according to the defendant. His was contradicted by his brother witness who said there were more then 80 but less then 100 people, that gathered to attack the defendant at the time.

The court was not satisfied with the reasons for discharging a pistol and the subsequent assault on Julie Samai, her sister Alice Samai nor the two other ladies being armed in anywhere to attack the defendant. Neither do I find that the crowd who gathered there was Julie Samai’s relatives, instead I form the view that, if there were any crowd there at all, they may have been the "On- lookers" who wanted to see what was going on in and around the defendant’s house at Tokam Barracks, due to the sound of gunfire.

If there were any crowd numbering up to 80 people had assemble to attack the defendant then it reasonably would have been a police case, where the police should have been called into the intervene, this has not happened.

Thus it can be safely concluded that there were no crowd.

As a result this court concluded that the defendant was not placed under any circumstances where his own life was in risk. Hence, his actions were unwarranted. Accordingly this court made the orders it made on 19th November 2004.