DC1089

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CRIMINAL NO: 33 OF 2011

BETWEEN:

POLICE
Informant)

AND:

SAWRICK PISE
(Defendant)

Vanimo:  B. Kome, Magistrate

2011:  28 APRIL

CRIMINAL PROCEEDINGS – Unlawful Assault – Section 6 (3) Summary Offences Act -   
Issues of Provocation and Defence of Property – Sections 265 & 273, Criminal Code Act.

Cases cited – Nil

Counsel:  

Senior Constable D. Joel for Prosecution.
Defendant in Person.

3 June 2011.

“REASONS FOR DECISION.”

1.  KOME, B: Defendant, Mr. Sawrick Pise was charged for Unlawful Assault under Section 6(3), Summary Offences Act and he admitted to the charge but told the Court that he had his reason so his charge was charged to Not Guilty and set down for Trail.

2. Matter was set down for Trial on 28 April 2011 and on that date, the Prosecutor called one (1) witness who was the Complainant, Ms. Daisy Sungi. Defendant on the other hand, gave unsworn evidence and he also called one (1) witness.  Ms. Sungi was also cross examined by the Defendant.

PROSECUTION EVIDENCE.

3.  Daisy Sungi gave evidence that she was married to Defendant but they had separated because of his violence on her.  She said that on 29 January 2011, she was trying to go to Batas with her aunt and her baby in the morning when Defendant came and got the baby from them.  She said the Defendant gave the baby back but then got the child again the second time and off in the direction of his house.

4.  Complainant said when she realized that, she called Defendant but he engaged her call on the second attempt.  Complainant said she wanted to ask Defendant engaged the phone again on the third attempt.  She then shouted to Defendant but he walked faster.

5.  Ms. Sungi said that made her mad and she followed Defendant to his house because he had the child.  She said she got a karanas stone and shot it at his house and then got a spade under the house and hit the door of his house. Complainant also said that she had a small knife to protect herself because she feared that Defendant would hit her. She said when she hit the door with the spade, Defendant came out with a bush knife and a plank/timber and hit her once and it broke on her back.

6.  Ms. Sungi said Defendant then chased her with the bush knife and caught her and dragged her and tore her shirt and wanted to drag her to his house but she held onto the market timbers and people came and stopped him and she escaped. She then reported the matter to the Police Station.

7.  Complainant also said that she had not argued with Defendant that morning and that the knife she had was small and also that she got bruises on her back and elbow and her small finger on right hand but did not go to the Hospital.

DEFENDANT’S EVIDENCE:

8.  Defendant gave unsworn evidence in which he said the assault did occur but that he had assaulted her to stop her from damaging the house and vehicle in the premises.  Defendant also attempted to give photos of the extent of the damages but the Court refused because it was not properly filed or made known to the Court and prosecution before the trial. Defendant gave evidence that Complainant had come in an aggressive manner and had come with all sorts of things and he thought she would harm him.

9.  Defendant said they (Complainant and her aunt) had refused to give the child to him and had avoided him and so he got the child and said to them; “if you want to go, you can go, I will get the baby and go home.”  That he then walked home with the child and his phone was on vibration so he could not hear the call. That Complainant had then come after him with a knife and swore at him so he went straight home.

10.  Defendant further stated that after this, Complainant had come to his house with stone, knife and spade and used these things to damage the house and also a hilux utility at home. That if she had not gone there, he would not have assaulted her. He also said that he had used reasonable force to disarm her, otherwise she would have cause more serious problems.

11.  Defendant’s witness, Ignas Marinja gave evidence that he was at his home when Complainant had gone up, shouting and swearing and got a small stone and threw it at the Defendant’s house. Mr. Marinja said that he tried to calm her down but she got another stone and broke the glass of a vehicle and fibro of the house. That later she got a spade and broke the door of the house, and also broke the fly wire of the house.  Mr. Marinja said that after that he went home and did not witness the fight but when Defendant chased Complainant down the road, he went and got the weapons from them and separated them.

12.  In the cross-examination of Mr. Marinja, the prosecutor put to him that he was lying because he said he had seen the Complainant threw the spade at the door but he did not see the fight.  That both things happened in a short period of time, but Mr. Marinja maintained that he had gone there but when Defendant came out to fight, he had walked away and that he was only telling the Court what he actually saw.

13.  In summary, Defendant said that he had assaulted the Complainant to disarm her and prevent further damage and costs to the house and the vehicle.

14.  The Prosecutor on the other hand submitted that there was no issue as to assault and the only issue was whether there was provocation.  That if Defendant did not get the child and walked home, those things (assault) would not have occurred.  That even though the Complainant had the knife, she did not stab Defendant.

ISSUE:

15.  The Court noted that the Prosecutor has raised the issue of provocation in regard to Defendant provoking Complainant to go and destroy the properties. The Defendant also implied from his evidence that there was provocation on the part of Complainant and her aunt when they did not allow him to see the child and how they avoided him on that day and that had made him angry and he got the child and went home.

16. Without any other witnesses to support the evidence of either party to show that they were provoked on that day, the Court cannot determine the issue of provocation properly.

17.  The Court also notes that Defendant had raised the defence of using force to prevent Complainant for causing further damages to the properties. This is a defence recognized by law and there is evidence of damage done by Complainant who had admitted to doing damages. Defendant’s witness also gave evidence in Court regarding the damages.  The issue before this Court will therefore be:

•	Whether Defendant had used reasonable force to defend destructions or damage to the 
              properties by the Complainant.

APPLICABLE LAWS:

18.  The applicable Laws are as follows:

       (i). Section 265, Criminal Code Act (CCA).

265. DEFENCE OF DWELLING-HOUSE.
It is lawful for a person who is in peaceable possession of a dwelling-house, and for any person lawfully assisting him or acting by his authority, to use such force as he believes, on reasonable grounds, to be necessary in order to prevent the forcible breaking and entering of the dwelling-house by any person whom he believes, on reasonable grounds, to be attempting to break and enter it with intent to commit an indictable offence in it.

(ii). Section 273, CCA.

 273. DEFENCE OF MOVEAVBLE PROPERTY WITH CLAIM OF RIGHT

    When a person is in peaceable possession of any moveable property under a claim of right, it is Lawful for him and for any person acting by his authority to use such force as is reasonable necessary in order to defend his possession of the property even against a person who is entitled by law to possession of the property if he does not do him bodily harm.

FINDINGS:

19.  In our present case Complainant had admitted to throwing stones at the house and hitting the door with the spade and it was not denied that she also damaged the vehicle glass.  In this case, it is reasonable that Defendant can rely on the defence of trying to disarm the Complainant as to protect the properties from further damages. The issue now arises as to whether Defendant had used reasonable force to do so.

20.  In the case of “State –v- Wilson’ [1995] PGNC 37, it was held that when a situation calls for the use of force to prevent the commission of a crime, the force used must be justifiable, reasonable or not excessive.

21.  In the instant case, it is true that  Complainant only had a small knife which she did not used but once in the premises where the Defendant was, Complainant immediately armed herself with stones, spade and did damages to the house and the vehicle.  Defendant had then come out with a bush knife and timber and hit the Complainant with the timber.

22.  Although Complainant said she had suffered some injuries, she did not go to the Hospital, and there is no evidence of how much injury she suffered.  Court also notes that Defendant was armed with bush knife but did not use it since Complainant had said he had only used the timber to hit her.

23.  After considering all the evidence before the Court, I am of the opinion that Defendant had used reasonable force to disarm the Complainant. The manner in which she had gone up to the house and the actions she took justifies that she did not care if she had destroyed the house or the vehicle.

24.  It is clear that in the state she was in, if Defendant had tried to disarm her without using reasonable force, Defendant would still have persisted to do further damages. Defendant had therefore used reasonable force to disarm her. Even though she was chased and dragged, the Court noted that there is no evidence of her sustaining any substantive injuries.  If Defendant wanted to assault her badly, he would have used the bush knife instead of the timber.  This shows that excessive force was not used.

25.  The Court will therefore rule that the Defendant had a justifiable defence which is to protect the properties he was lawfully living in and he had used reasonable force which was not excessive to protect the house and the vehicle from further damage.  The Court therefore dismisses this case with bail to be refunded.

Senor Constable D, Joel for Prosecution.
Defendant in Person.