DC620

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 25 - 26 of 2006

BETWEEN

MISEK KUMUEWA
Informant

AND

JOGI SOGAMO
NIPI SOGAMO
Defendants

Goroka: M Gauli, PM
2007: September 04, 10

CRIMINAL - Particular offence – Wilful and unlawful damage to property – Act done in retaliation – Provocation – Not a defence in cases of wilful and unlawful damage to property – Offence Committed under extenuating circumstances. 

Cases Cited
1. Pukari Flabie –v- Hambakon – Sma [1965 – 66] PNGLR 348

References
Nil

Counsel
For the Prosecution – Senior Sergeant Mark Yamuje,, Goroka Police Station
For the Defendants – In Persons

10 September 2007

COURT’S RULING

M Gauli, PM: The defendants stand trial on a charge of wilful and unlawful damage to property pursuant to Section 444 (1) of the Criminal Code Act, Chapter 262, which states that: “(1) A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated is a misdemeanour”. .

2. The Undisputed Facts.

That on the night of Friday 04 May 2007 at Asaroka Lutheran High School during the school’s quiz night, there was a fight between the students and some outsiders who were drunk. One of the students was injured on the head with a stone been thrown by a drunkard. The students chased them out of the school ground. The defendants have a vegetable garden outside the school ground. The students armed with bush knives entered the defendant’s garden and destroyed their banana plants and other food crops. None of the defendants were involved in that fight nor were they present at the school ground that night.

3. Next morning on Saturday 05 May 2007 at about 7:00 o’clock when the defendants saw the damage done to their food garden they proceeded to Asaroka Lutheran High School. Defendant Jogi Sogamo picked up a river stone, he threw it and hit the door of the school’s administration office once. The impact of the stone on the door caused one of the louver blades to fall and it broke. The other defendant Nipi Sogamo armed with a claw harmer hit the headmaster’s office door twice and the door broke open. He then proceeded the deputy headmasters residence where the school’s dyna truck was been parked. Using the same claw harmer, he smashed its front windscreen, the lights and the side windscreens. Then they proceeded to the headmaster’s residence. When the headmaster came out of his house, the defendant Nipi Sogamo punched him twice. The defendants do not dispute these facts.

4. Given the scenario as above, the only issue to be decided is: “Whether or not the defendants wilfully and unlawfully damaged the properties”.

5. The prosecution called five witnesses. They are Foxy Kunai and Noelsar Kubakure, both teachers at Asaroka High School, the headmaster Inji Pombre, Alex Singamai the police photographer and Misek Kumuewa the Police Informant. In their evidence there is no mention of the defendants or one of the defendants being involved in the fight with the students at the school on the night on Friday 04 May. There is no evidence the defendants were present on the school ground that night. 

6. The witness Foxy Kunai and Noelsar Kubakure were present at the school’s administrative office building on the morning on the Saturday 05 May and witnessed the defendants causing the damages to the truck and the office doors. They said that the defendants came with a crowd of people but crowd did not do anything except the defendants.

7. The headmaster Mr. Inji Pombre gave evidence of the incident outside the school’s main gate that Friday night. That night about 8:00 pm he in the company of two teachers and two male students drove out in the school’s truck to the head of Ifiyufa river to check the inlet to the school’s water supply pipe because the school was facing water problem that night. On their return to the school, they met a crowd of students at the front of the schools main gate. He told the students to return to their dormitories because it was night. When he walked back to the truck he parked some 20 metres before the gate, objects were been thrown at him by the people who were outside the school gate. He rushed back to the truck and reversed back to the Lutheran Mission Station. The students came out of the gate and chased the outsiders. Some students have gone into the defendants garden and chopped down their bananas during that commotion. He then moved the students back to the school. He parked the school truck at the Deputy Headmaster’s residence, not far from the Administration office.

8. Next morning the defendants with a group of people went to the Headmasters residence. The defendants insulted him and assaulted him. There was no damages done to the school truck during the incident on that Friday night outside the school gate.

9. The defendants evidence is that they were not at the school ground nor involved in the fight on the night on Friday 04 May 2007. The defendant Jogi Sogamo gave evidence that he was with his family at his house at Dimiyufa village which is one or two kilometres away from the Asaroka High School. Next morning on Saturday 05 of May, defendant Nipi Sogamo told him of the damage done to their family garden by the students on Friday night. So both went to the school area. He picked up a stone hit on the door of the schools administration office once. The impact caused one of the louver blades to fall and it broke. Then they proceeded to the headmasters residence where defendant Nipi Sogamo assaulted him by punching him. The students who were out on work parade that morning came armed with spades, grass knives or bush knives and sticks and assaulted both defendants. One of the Senior teachers Mr. Kefei was present with the headmaster but they did not stop the student. The defendants then left the school ground. At the front gate of the school the students assaulted them again.

10. Defendant Nipi Sogamo gave evidence that on that Friday night he was watching the NRL football game at Julian Ulopo’s house at the Asaroka Primary School. At about 11:00 pm that night while watching the second game, they heard the High School truck made a quick u turn at the Primary School gate. He and two others walked out of the house and followed the High School truck on foot. He saw the truck parked near his garden. The truck was parked in a way that its headlights were flashing onto the garden. He saw the crowd of High School students armed with bush knives, sticks and stones entered his garden and destroyed the food crops such as banana trees. He was standing some 20 metres away in the dark from where the school truck was parked. Then the headmaster called the students to come out of the garden and they went back to the school. 

11. The defendant Nipi resides close to his garden. Next morning he went back to his garden and saw the damage caused by the students. He got his claw harmer and a packet of nails to fix the garden fence but when he saw the damage done he entered the high school area with defendant Jogi Sogamo. He (Nipi Sogamo) hit the headmaster’s office door twice with the harmer and broke it open. Then he went to the school’s truck damaged its windscreen and lights with the same claw harmer. Both proceeded to the headmaster’s house and he punched the headmaster twice. His evidence confirms the rest of the evidence of defendant Jogi Sogamo.

12. The witness Foxy Mutaning, a DPI officer stationed at Asaro Station gave evidence of his assessment of the damages done to the defendants garden. He conducted his assessment and inspection on Saturday 19 May 2007 some 14 days later. There was no representatives from Asaroka High School or even the Police at the time. He assessed the value of the damaged crops at K782.00 using the Valuer Generals Price Index Act of 1995.

13. The witness Ian Weindape, a teacher at Asaroka Primary School gave evidence confirming that the defendant Nipi Sogamo was with him at Julian Ulopo’s house watching the NRL football gave on the night of Friday 4 May. He confirmed that he walked down with the defendant Nipi and witnessed the High School students damaging the defendant’s garden that night. However he was not aware of the incident of the next morning, Saturday 05 My at the high school ground.

14. From the evidence as presented to this Court, it would obviously appear that the defendants were provoked and acted in the way they did. The prosecutor submitted that the defence of provocation has no application to the defendant because the defendants did not act in a heaf of a passion. There was some lapse in time between the incident on Friday night and the incident on the next morning where defendants have ample time to cool off their anger.

15. The defence of provocation under Section 267 of the Criminal Code Act only applies in the cases of provoked assault. This defence is not available in cases of damages to property. This provision states and I quote:

“267	Defence of provocation
(1)	A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he _ _ _ _ “.

16. Clearly this provision is only available in cases of assaults. The defendants are charged for wilfully and unlawfully damaging properties of another under Section 444 (1) of the Criminal Code Act. To constitute the offence under this provision, the prosecution must prove and establish that the acts done by the defendants are wilful and unlawful. From the evidence as given I find that the defendants wilfully acted in the manner they did. It was a deliberate act done independently of their will – see Pukari Flabu –v- Hambakon Sma [1965 – 66] PNGLR 348. They went to the school and caused the damages without trying to reason out the situation.

17. As to the element of unlawfulness of their act, it is unlawful for one to take the law into their own hands. We have existing system of law were one’s grievances ought to be brought to resolve them through the Court systems. I do appreciate that. The defendants in the present case retaliated the next morning when they saw their family garden was destroyed by the students the previous night. To an ordinary villager, a garden is his life, he depends on it for his living. The defendants were never involved in the incident on the previous night at the school area. There was no reason for the students of Asaroka High School to cause destructions to the defendants food garden. The school never had any problems with the defendants before. I find that the defendants committed the offence under the extenuating circumstances. And I consider Section 132 (1) (c) of the District Courts Act as relevant and applicable in this case. This provision states and I quote: 

“(1)	Where a person is charged before a Court with a simple offence or an indictable offence triable summarily, and the Court thinks that the charge is proved but is of the opinion that, having regard to – 

(a)	_ _ _ _ _
(b)	_ _ _ _ _
(c)	the extenuating circumstances under which the offence was committed, it is expedient to inflict punishment, or other than a nominal punishment or that is expedient to release the offender on probation, the Court may without proceeding to conviction, make an order – 
(d)	dismissing the charge; or
(e)	discharge the offender conditionally on his entering into a recognizance _ _ ”.

18. I consider that the defendants have unnecessarily suffered the loss of their garden at no fault of their own. They were totally innocent and not a party to the incident on the night of 04 May 2007. Though the defendants may have acted unlawfully by taking the law into their own hands, I find that they acted under the extenuating circumstances And I order that the case be dismissed against the defendants. Their bail be refunded.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendants – In Person