DC964 

PAPUA NEW GUINEA
In the District Court of Justice sitting in its criminal Jurisdiction

Ccr No 8 of 2010

BETWEEN:

SILA LOKONBO
Informant

AND:

JOHN SIVENSON
Defendant

Lihir: B Tasikul, SM
2010: March 03, 05

CRIMINAL LAW: Use of insulting words- s. 7(b) Summary Offence Act- trivial matter –serious matter in custom where customs is adopted and applied as part of underlying law. Customs take in to account as sentence option.

CASES CITED: Kurondo V Dabiri (1980) N258

REFERNCES: 
Constitution Schedule 2
Customary Recognition Act, s.4 (e)
Summary Offence Act s.7 (b)

COUNSEL:
For the Prosecution- Senior Constable Cathy Odis
For the defendant- In Person

DECSION ON SENTENCE

1.	B TASIKUL: The defendant of Wellington in New Zealand pleaded guilty to the charge of using insulting words to wit: FUCK ME towards Esther Kabui whereby a breach of the peace was likely to take place. This an offence stipulated under s. 7(b) of the Summary Offences Act.

2.	According to the statement before me you were at your office at Anitua Hardware. The complainant who is also an employee of the same company was also there. She was sweeping the floor of the office using a broom.

3.	You did not agree with her using the broom as it was proper for her to use a vacuum cleaner. As the result of her action for not using an appropriate tool, you utter the word fuck me. Upon hearing of these words she felt very disappointed.

4.	As you have mentioned you apologized to her several times. Whether she accepted your apology or not she felt offended that is why she brought the matter to the police, where now you are charged by this offence.

5.	 You also make mentioned that there was nobody else around, only just two of you. The criminal elements of this offence must be proved beyond reasonable doubt. In your case you admitted to saying these words.

6.	The words you uttered was within the hearing of the complainant and none others. The offence under this provision must display all elements of the offence as it was highlighted in the higher court.

7.	His honour Miles J (as he was then) in the matter of Kurondon V Dabiri (1980) N258 has to say this as I quote: The offence is not merely one of using insulting words. The legislation is directed to public order, not as I say, to the public display of manners. It bears the title “Provoking a <Breach of the Peace>”. The use of insulting words, within the meaning of the section, must be accompanied by an intention to provoke a <breach of the peace> or alternatively a likelihood that there will be an actual occurrence of a <breach of the peace>. In this case the prosecution has elected to rely on intention and that intention must be strictly proved. 

8.	In this present matter there was no one within the vicinity who may have heard what you had said, but only the complainant herself. There was no breach of the peace within the hearing of the public. As mention by his honor that this piece of legislation was meant to be directly to the hearing of the public.

9.	Nevertheless, the National Constitution under Schedule 2 adopts and recognized custom as part of the underlying law. Furthermore, s.4 (e) of the Custom Recognition Act states:

Subject to this Act and to any other law, custom may be taken into account in a criminal case only for the purpose of 

(e) determining the penalty (if any) to be imposed on a guilty party,

Or where the court thinks that by not taking the custom into account injustice will or may be done to a person.

10.	In Papua New Guinea society women are the most respected in the community. If you swear a lady in the presences of her relatives then you must compensate her and her relatives.

11.	In New Ireland Province women are the custodial of the clans land and there their status in this society is very respectable.

12.	However, that is not only the custom of this society that give respect to the womenfolk, but also internationally women must be treated equally to men as it been declared in the United Nation charter in New York in 1991 eliminated all forms of Discrimination Against Women .

13.	With this remarks let me finally say this, it may be a very trivial matter in criminal law, but it is a very serious matter in the custom of this society. I must therefore take the social custom into account.Therefore I find you guilty and without convicting you I will discharge you on the condition that you pay the complainant the sum of K500.00 as compensation. You may refund your bail.