DC3071
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL COURT JURISDICTION]

CR  318-320 Of 2017

BETWEEN

POLICE/ STATE

Informant/ Complainant

AND

1.	MICHALE PAULUS
2.	PEKA KARI
3.	JONAH KORA

Defendants

Goroka,Sani Lorna, Magistrate

2017:      April 5

CRIMINAL LAW - SUMMARY OFFENCE–Breach of section 6 (3) of 
S.O.A Ch. 264

CHARGE – 	Unlawful Assault – Joint Trial – Whether the 3 defendants 
committed the same offence? Defendants each and severally raise provocation as defense.  The Onus is on the Prosecutionto disprove and establish criminal responsibility as to whether or not the defendants acted in the absence of provocation.

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Cases Cited:  
R – V – PIANE (1975) P.N.G.L.R 52

Reference:
Nil

Counsels:

Lawyer for the Informant, Police Prosecution,Sgt. Gitene

Lawyer for the First Defendant, In Person

Lawyer for the Second Defendant, In Person

Lawyer for the Third Defendant, In Person

05th April, 2017

DECISION OF THE COURT

L SANI, Magistrate:This is a joint hearing where an “Offence” is committed by two or more persons jointly the charges may be heard together.  At the outset the defendants were told of their right to be heard separately however they preferred to be heard together as in “Joint Trial”.

2.  It is alleged that on the 3rd of March, 2017 at around 5:30 pm the complainant/victim namely Peter Kaupa, his wife JayjayLahanaKaupa, victim’s elder sister namely DalinaKaupaand her husband namely Michael Paulus, 1st defendant, his brother namely Peke Kari, 2nd defendant and the 3rd defendant namely Jonah Kora a cousin of the Kaupa familywere all in their premises at West Goroka.  The house belongs to their deceased father late Mr. Kaupa.  It is not known who has the title to the house and if it was with the father-whether it has been transferred to one of the children as the beneficiaries to the property is not known.

3.  The complainant/victim told the court that there had been an on-going and continuous argument between his elder sister and himself which spilled over to his wife over the said family property.  It was revealed in the evidence that his eldest sister is living in their family property alone with her Mendi husband and his relatives. Dalinda did not want her brother Peter and his wife including others of their siblings to share the subject property. 

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4.  His 2 other sisters are married and live away but for him, his wife and 2 children were told to sleep in the Kunai hut outside which used to be the family kitchen.

5.  On the date of the offence the victim’s wife started the argument with her sister-in-law over the said family property.  She told the court that on that day she told Peter’s sister that she must compensate her husband so they can go and find a house to live whilst she can live in Kaupa’s family residence with her husband.  HoweverDalina replied and told her to continue living in the kitchen house.  

6.  Peter’s wife became angry and threw stones into the house which made the sister-in-law mad with her. She ran to stop her but fell down and twisted her leg in the event, her husband who’s the 1st defendant saw his wife falling down upon twisting her leg he became angry also, went and assaulted his brother-in-law whose the complainant/victim.  Theother two defendants also joined in at the same time and assaulted the complainant/victim.The three (3) were reported to the police where they gotarrested and jointly-chargedfor the offence.

ISSUES

7.  Whether the assault did take place and that it was provoked or voluntary action by the defendants.  Whether defense raised was established and proved by the 3 defendants.  Whether the Prosecutiondischarged the onus of proof of criminal responsibility beyond reasonable doubt?

LAW

8. Charge:  Unlawful Assault-section 6(3) of Summary Offences Act, Ch. 264.

Section 6  Assault-

(1)	In this section, “applies force” means application of heat, light sound, electrical force, gas odor or any other substance or thing if applied to such a degree as to cause any injury or personal discomfort.

(2)	For the purposes of this section a person who –
(a)	strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly without his consent or with his consent, if the consent is obtained by fraud; or
(b)	by any bodily injury act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,
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Is deemed to assault that person.

(3)  A person who unlawfully assaults another person is guilty of an offence.

9.  Penalty:  A fine not exceeding K 500.00 or imprisonment for a term not exceeding two years.

BURDEN OF PROOF

10.  The Prosecution has the burden of proving beyond reasonable doubt the essential elements of the offence of Assault and that the defendant’s action was insufficient in the absence of provocation.  

11.  The elements of the charge are: 
(a)	  A person (s) being the defendant (s)
(b)	did assault with force
(c)	  Another person (to whom the assault was executed)

Court’s Finding on Evidence:(Analysis)

12.  Prosecution Evidence- Prosecution called two witnesses. Peter Kaupa, the complainant/victim himself and his wife namely JayjayLahanaKaupa.  Prosecution evidence established all the elements of the charge.

13.  The issue of whether or not assault did take place and whether the assault was provoked?

14.  The Assault was not disputed.  The 3 defendants admitted the assaulting the victim (Peter Kaupa) however raised defense of provocation saying that they were provoked by the victim and his wife.  

15.  According to the factstwo witnesses for prosecution stated that theargument was started by the two women.  Peter Kaupa’s (victim) wife Jayjayand his eldest sisterDalina.   The complainant Peter Kaupa is the 3rd born in the family.  Dalina, the wife of the 1st defendant and eldest sister of the victim  on the date in question told Jayjay her sister-in-law in the cause of their argument that she and her husband will continue to live in the family kitchen.These words provoked her to throw stones into the said property.   Dalina got angry and ran towards Jayjay but on the way she fell down and twisted her leg.  

16.  The complainant/victim Peter Kaupa also ran towards the two women.  He told the court he ran towards them thinking they were going to fight and was trying to stop them.  In the same instance the first defendant upon seeing his wife’s 
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predicament went and assaulted the Peter. Two of the co-defendants also took turns to assault the complainant.

Defence Case:

17.  The 3 defendants each and severally raised provocation as their defense.  The question to ask here is:  Did the complainant provoke them and did they act upon direct provocation? If these two questions are answered in the negative then their defense cannot be sustained.  This means that there was no direct provocation on part of the victim towards the 3 defendants.  Therefore it goes on to mean that their actions were unprovoked.  It fails also because they did not have witnesses to establish and support their defense and the nature of their defense.

18.  LAW:Defence of Provocation – Sections 266 &267(2) (c) of PNG CCAstates that a person is not criminally responsible for an assault committed on a person who gives him provocation in any particular act is a question of fact.  In this case the absolute defense of provocation is not available given the above set of circumstances.

19.  It goes on to state the conditions which must be met for the defence to succeed.  One of the conditions is that:  “The assault must be upon the person who gives the provocation”.

20.  The Prosecution has the responsibility to establish the onus of proving the criminal responsibility on the basis that defendant’s action was not provoked by the victim. 

21.  The prosecutor in examination in chief to the 1st witness – who’s the complainant/victim,asked 2 questions; did you assault your sister and make her fall? The answer was No.Did you start the argument with your sister?  The answer was No.Did the 1st defendant come and hit you? The answer was yes.

22.  The 2nd witness Jayjaywho’s the wife of the complainant/victim was also asked two questions; Is it true that you argued with your sister-in-law on that day and why did you argue?  It’s true I argued with her because she never likes to talk about the problem and solve it.   Did you see your husband go and hit his sister?  The answer is No.  Then why did Dalina’s husband who’s the first defendant come and hit your husband?  Answer was “I don’t know.”

23.  Issue of criminal responsibility of whether the defendant’s action was provoked?  The answer was No.  Thecomplainantdid not do any of the actions they allege which provoked them directly to lose their power of self-control to run and assault him. The defendants upon cross-examination asked the complainant; did we argue with you and your wife? Answer was No.  How many times your wife didthrow stones into the house?  Answer was I cannot recall.Defendant 3 – asked jayjay 2nd police witness-
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Why did you start the argument? Answer- Because we were sleeping in the kitchen for so long.2nd question-Why did you throw stones and break the house? Answer- I was angry because I was moving like a nomad with my husband and 2 children while you all are sleeping comfortably in my husband’s house.

COURT RULING ON EVIDENCE

24.  The ultimate question for the court now is to decide whether the 3 defendants in this case are guilty of committing Assault?

25.  The court goes on to rule that the question and answer in both prosecution and defense shows clearly that the defendant’s actions were overt and lack the element of provocation and that the 3 defendants were overborn by the victim’s wife.  The evidence shows that the victim’s wife Jayjay throw stones at the Kaupa family property and broke it.  Instead of hitting the wife they ran and assaulted the husband.  The provocation wasinduced by another person lacking the element of direct provocation on part of the victim.

26.  The 3 defendants failed to establish the credibility as to the truth of her statement in their cross-examination to the victim.  Same questions asked to the victim’s witness should have been asked to the victim in order to sustain their defense.  However whether or not he told his wife to throw stones to the house and break it is for the defendants to bring evidence and establish their defence in which they did not.  It is a general rule that it is not for the defendant to prove his own innocence.  It is the job of the prosecution to prove the guilt.

27.  I will now allude to the final part of my deliberations and conclude that the prosecutions have discharged their responsibility and proved the case beyond reasonable doubt.See Fundamental principle is discussed in the case of R –V- PIANE {1975} P.N.G.L.R 52

28.  On the basis of the evidence above, I find the three (3) defendant’s evidence extrinsically weak and insufficient to support their defence.  Therefore I conclude that the 3 defendants each and severally areguilty of committing the offence of assault towards the complainant, Peter Kaupa without direct provocation. 

COURT ORDER

All 3 defendants each and severally convicted and ordered to pay K200.00 each at the total of K600.00 as court fine forthwith, in default one (1) month imprisonment each person at Bihute CS.  

The defendants E & S consented that their bail monies be converted as court fine.

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Counsels:

Lawyer for the Informant, Police Prosecution, Sgt. Gitene

Lawyer for the First Defendant, In Person

Lawyer for the Second Defendant, In Person

Lawyer for the Third Defendant, In Person