DC2090
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE 
SITTING IN ITS CRIMINAL(SUMMARY) JURISDICTION]
Case Reference No 3022 of 2016

BETWEEN
POMBUAI PEPI

AND
 ALBERT KERUT

Boroko:   

:  15, 18, 20 July, 2, 5 August    

CRIMINAL- Simple offence-Summary Offences Act, s 6 (3)- Assault-Trial-Plea of not guilty-Assault of Wife by Husband-Domestic violence-Denying assault-elements of offence-burden of proof on Prosecution 

Cases Cited
JAMES PARI AND TINE BOMAI KAUPA [1993] PNGLR 173 

References
Bail Act Chapter 340,
 Summary Offence Act, 

Counsel
Name Of Lawyer, for the Sergeant M. Rambusumbi
Name Of Lawyer, for the Defendant in Person
5 August 2016
L Wawun-Kuvi    :      
VERDICT
1.	INTRODUCTION: Albert Kerut (referred hereafter as “the defendant”) is charged that on 25 June 2016 at Hohola in National Capital District, he unlawfully assaulted one Pauline Ofu (referred hereafter as “the complainant”). The charge is one of assault under s 6 (3) of the Summary Offences Act. To this charge the defendant pleaded not guilty. The matter was heard by me in the National Capital District Summary Court at Boroko.
2.	The defendant denies the allegation and challenges the factual events of the night in question.
3.	During the trial the prosecution called two witnesses. The defendant gave evidence in his own defence after a failed no case submission.
allegations
4.	It is alleged that on the 25 June 2016, at about 11.00 pm the defendant returned home drunk. He used his foot and fist and kicked the door several times. When the complainant opened the door, the defendant used both hands grabbed her and pulled her onto their stairs where she fell and sustained bruises and pain all over her body. It is alleged that he had issued threats earlier on that day that he would assault the complainant.
UNDISPUTED FACTS
5.	The defendant admits:
5..1.	that there was an argument however denies that he grabbed the complainant, pulled her and threw her onto or against the stairs of their apartment.
5..2.	that he had left messages for the complainant and her family to vacate the premises at Hohola.
5..3.	that he was drinking at a meeting prior to returning home.
5..4.	that he slapped the complainant once.
ISSUE
6.	The question for the Court to determine is whether or not the defendant grabbed the complainant’s shirt and pulled her out of the room and threw her against the stairs?
findings of fact
7.	Before proceeding onto my findings in relation to the facts I state here that there is no principle in law that requires me as a trier of fact to believe or disbelieve the whole of a witness evidence. Rather, I may believe none, part or all of the witness evidence and may attach different weight to different parts of the witness evidence. (James Pari and Tine Bomai Kaupa [1993] PNGLR 173)
8.	I have written the evidence as each witness gave evidence and each of them have signed what I written down attesting to its accuracy. I have considered all the evidence as adduced by both the prosecution and the defence. Where I have not mentioned matters in this decision it does not mean that I have not considered them or not given them the appropriate weight. 
9.	The defendant is forty seven years old and from Wabo, Baimuru, Gulf Province. He lives at Hohola One. He has been living there now for seven months. Pauline Ofu, the complainant is the second wife of the defendant and lives with him at Hohola One. 
10.	The residence is an apartment or flat. The defendant and the complainant live in the upstairs apartment while other people live downstairs. Living in the apartment at the time was the defendant, the defendant’s brother and his wife, the defendant’s children from his first wife, the complainant, the complainant’s brother and his wife and the complainant and the defendant’s own children. The defendant and the complainant share a room with their children while the defendant’s children from his first wife sleep in another room. The rest of the inhabitants sleep out in the living room.
11.	The defendant and complainant were having marital problems leading up to the time of the assault. The reasons for their problems varied from the defendant wanting his first wife to live in the house to the complainant arriving home late at night, but for the purpose of this trial, the problems whatever they were, culminated into the defendant detesting the presence of the complainant in their home to the point that he demanded on several occasions that she leave the house. He loathed her presence to the extent that he even volunteered to pay five hundred kina from his own salary for her to rent somewhere else to live. The defendant’s evidence of the complainant can be best described as an increasing disappointment of what she turned out to be.
12.	On 21 June 2016, the defendant determined to have the complainant vacate the apartment left word through his brother, that the complainant leave the apartment. The defendant left for Brisbane on that day.
13.	  On 25 June 2016 at about 11:00 am, the defendant returned from Brisbane and learned that the complainant was still living in the apartment. He again left word through his brother and his children from his first marriage to inform the complainant and the complainant’s brother to leave the apartment.
14.	 At about 3:00 pm on the same day, the complainant upon her return to the apartment was told that the defendant wanted her to move out of the house before he returned home drunk. She was aggrieved by this and reported what she described as a threat to the police sometime between 4.00 pm and 5:00 pm. She then returned to the apartment.
15.	At 11.00 pm the defendant arrived home under the influence of alcohol. The complainant states that the defendant was drunk whereas the defendant states merely that he did drink alcohol. I find that the defendant had been drinking enough so that he had the courage to confront the complainant himself about her presence in the house as opposed to all other times where he had left other people to do what I term as his doing his “dirty work”.
16.	 The defendant than proceeded to the room where he shared with the complainant. The complainant states in her statement that the defendant uttered words to the effect that her brother should take her away from the house and in her evidence she stated that amongst saying other things he threatened to throw her down the stairs. The complainant’s brother stated that he heard the defendant asking for his bush knife. I find that the defendant did utter threatening statements to the complainant. All was not well between them by that night when one considers all the threats he issued for her to vacate the premises combined with her continued presence in the house on that night. This was enough to agitate him to the extent that he uttered threatening words.
17.	The complainant says that upon the defendant discovering that the room door was locked, the defendant booted the door three times. The defendant denies kicking the door. The complainant’s brother who sleeps in the living room with his wife says the defendant booted the door. He and his wife then left the house and went outside. I find that the defendant booting the door was the likely reason for the complainant’s brother and his wife leaving the house and going outside. Therefore I accept that the defendant booted the door.
18.	The complainant then says that the defendant used a spoon or knife to open the door. The defendant says that he used a spoon. In the absence of any other evidence, I find that the defendant used a spoon to open the door.
19.	Upon opening the door, the complainant stated that the defendant pulled or grabbed her. Her evidence was to the effect that the defendant grabbed her shirt and dragged her. That she had to hold onto the door to prevent him from further dragging her. That she then went out onto the veranda to avoid being thrown down the stairs.  The complainant states that the whole time the defendant was telling her to leave the house and that she wanted to leave but he was standing in her way. 
20.	It is the above events that the prosecution allege are the particulars of the assault. 
21.	 The complainant describes other assaults that occurred which the defendant was not charged for. The assaults being that after he insulted her she argued with him and when she did this he slapped her once on the cheek and punched her twice on the head. The defendant’s brother replicates this evidence. I accept the defendant’s evidence that he slapped the complainant only and reject the complainant’s evidence that he punched her. The reason being if he had punched her she would have reported this to police and it would have been included in the statement of facts which was not done. Although her brother provides evidence that he saw his sister being slapped and punched I do not accept his evidence in that regard. I accept his evidence to the extent that after his brother in law, the defendant, booted the door he and his wife left the apartment and went down stairs. I accept that the witness was present on the night in question and that he did hear and see a fight or argument but not to the detail he described. His evidence was word for word a replica of the complainant’s evidence. It would have been better had he given his evidence as he saw it.
22.	 Going back to the assault as alleged by prosecution, the complainant maintained under cross-examination that the defendant grabbed her shirt and pulled her out of the room. 
23.	The defendant gave sworn evidence. His version of the series of events leading up to the assault is basically the same as that of the complainant. He had told the complainant to vacate the premises twice previously. He was drinking at the meeting and returned home at 11:00 pm. He went to the room and used a spoon to open the door. He then took the complainant out onto the veranda and questioned her. He slapped her. The defendant stated:
‘I don’t think I dragged her, I took her to the veranda and I questioned her, my brother told me that Pauline was coming home at ten to eleven in the night. I took her out to the corner of the veranda……..I slapped her once but not punch’
24.	Considering that the defendant was drinking that night, it can be seen from his evidence that he is not entirely sure about the events of that night. His evidence is short and somewhat vague.
Conclusions
25.	Having seen and heard the witnesses, I prefer the account of the complainant in determining what happened after the defendant opened the bedroom door of the apartment for the following reasons:
•	The defendant attempts to minimise the nature of the assault to a simple slap however considering that the commotion started around 11:00 pm leading up to 12:00 am when the complainant contacted the police, it was more than just a simple commotion. There was more to the events then what the defendant described as just taking her aside and speaking to her then subsequently slapping her. The complainant risked her personal safety to go out onto street during the early hours of the morning to report the conduct of the defendant.
•	The defendant was vague in his version of what happened. He uses the words ‘I don’t think’ and ‘I took the complainant’. If he is adamant that he did not do it he should say I did not do it and if he did not pull or drag the complainant he should say I spoke to her or told her to go outside but rather he stated that he took her outside. He did not specify what he meant by the words ‘I took her outside’.
•	  Both the evidence of the complainant and the defendant is that the defendant was leaving messages for her to leave the house. The defendant states that he took her outside to talk. This is quite unlikely considering the culmination of events leading up to that moment. All the surrounding circumstances point to the fact that the defendant wanted her out the house and the last warning was given that very afternoon. The alcohol was a courage booster for him to execute his one man eviction that night. The complainant’s evidence is more likely and consistent with the build of events.
26.	 In reaching my conclusion, as to what happened that day and whose version to accept I looked at consistency and clarity in recollection of accounts, supporting evidence and inherent probabilities.
27.	Having now accepted the complainant’s version of events at the apartment at Hohola One, I now consider whether the elements of the charge of assault have been proven. 
the law
28.	Pursuant to section 6 (3) of the Summary Offences Act, the elements of the charge are:
•	A person
•	Unlawfully
•	Assaults
•	Another person
29.	In this case the element of assault is disputed. Section 6 (1) of the Summary Offences Act provides defines assault in the following terms:
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actual or apparent a present ability to apply such force, is said to assault  that other person.
30.	The defendant states that he did not assault the complainant in the manner described by the prosecution. 
31.	I have already accepted the version of the complainant.  The defendant had issued a number of threats or demands for her to vacate the premises. He wanted her out of the house by the time he returned and when she was still there her presence enraged him. The act of him pulling her by the shirt and dragging her out the door is consistent with a man executing his intent formed over the past days. I do not consider it probable given the circumstances that the defendant wanted to just talk.
32.	 I am satisfied on the evidence that he assaulted the complainant in the manner alleged by the prosecution. I therefore, find that the defendant Albert Kerut assaulted the complainant Pauline Ofu by dragging her on her shirt towards the veranda. I return a guilty verdict to the charge of assault.
33.	Pursuant to section 10 of the Bail Act Chapter 340, I exercise my discretion and grant the prisoner bail. The basis for this is that I am adjourning this matter to consider what sentence should be imposed or if any, in light of the allegations of the breach of the Family Protection Order. In particular, I am reserving sentence to consider the law on double jeopardy.
34.	This matter is now adjourned to Monday, 5 September 2016 at 10:00 am for sentence. 
35.	Bail after conviction is extended.

Lawyer for the  Police Prosecution 
Lawyer for the Albert Kerut In Person