DC4001
PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION

Cr 1229 of 2017

THE POLICE

Informant

AND

ARKIA GOSO

Defendant

Goroka, P Kaumba, Magistrate

2018: January 7
February17,21

CRIMINAL:

Cases Cited:
Nil

References:
Nil

Counsel:
	
Lawyer for the Informant, Police Prosecutor, MelaniUwano

Lawyer or the Defendant, In person

21st February, 2018

DECISION

P KAUMBA, Magistrate:Onthe 30th of November 2017 the Defendant was taken into custody by police and was charged for unlawful assault under section 6(3) of the Summary Offences Act(herein-after referred to as ‘the S.O.A’) and he was granted bail of K200.00.The Defendant came before me on the 7th day of December 2017 and he pleaded not guilty to the charge and the case was set for hearing on the 8th of January2018. The case did not proceed on the aforesaid date. The case was heard on the 17th of January 2017 and adjourned to 12th of February 2018 for decision but decision was not handed down because court house was out of bounds for the public due to Election Petition hearing between Simon Sia and Governor Peter Numu.

2. TRIAL.
On trial the state called one witness(Paul Uvovo) and the defendant called two witnesses(Alex Apo and Jonathan Goso).Thedefendant did not testify as witnessandhe chose to cross-examine the State witness and re-examined his witnesses from the accused’s dock.

3. RELEVANT LAW.

SUMMARY OFFENCES ACT

6	ASSAULT.
1.	In this section ‘applies force’ includes the application of heat, light, sound. electrical force, gas order 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 person either directly or indirectly, without his consent or with his consent if the consent is obtained by fraud; or
(b)	By any bodily 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,is deemed to assault that person.

3.	A person who unlawfully assaults another person is guilty of an offence.
Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two(2) years.

4.	Where a Court convicts a person of an offence against Subsection(3), it may order him to pay –
(a)	to the person, in relation to whom the offence was committed or
(b)	to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,such amount by way of compensation for bodily injury or damage to property of the person occasioned by or in the course of the commission of the offence, as it considers just.

2. BURDEN OF PROOF OF LAWFUL EXCUSE

Where under the provisions of this Act any act,if done without lawful excuse or lawful cause is an offence, the burden of prove that the act was done with lawful excuse or lawful cause, as the case may be, is on the person charged with the offence.

CONSTITUTION

Section 37(4) A person charged with an offence –
(a)	shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are or would be peculiarly within his knowledge….

CASE LAW

The burden of proof in criminal cases is on the state to prove all elements of an offence beyond reasonable doubt which reinforces a citizen’s constitutional right to be presumed innocent until proven guilty by a court of law. In SCR 1 of 1980 Re s22A(b) Police Offences Act(Papua)(1981) PNGLR 34 Justice Greville Smith as he then was made it clear in the following terms:
‘’The general rule is that in criminal case it is for the prosecutor to prove, and to prove beyond reasonable doubt, every element of the offence…The rule applies equally to negative element as well as for instance the absence of consent in rape cases. Accordingly the crown must prove every fact whether affirmative or negative which forms an indictment of an offence’’

It is also trite law that a tribunal of fact cannot convict a person on uncorroborated evidence of one witness(State –v- Andrew Sinogup(2015) PGNC 15) except in exceptional cases where evidenceis clear and/or where circumstantial evidence point to one direction only the courts can rely on one witness to convict.

Provocation in the legal sense is not available to offences under the Summary Offences Act. However provocation may, however be taken into account as an important factor on sentence(Aipa Peter-vs- James Kapriko(1984)PNGLR 179).

However recent decision of the Supreme Court in the case of TheressKubamong-v- The State(2008) SCR 29 of 2007 and National Court decision in The State –v- Malaki) are authority for provocation in legal sense and not in the legal sense as been available to all humans who commit criminal offence.

CRIMINAL CODE.

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-
(a)	Is deprived by the provocation of the power of self-control; and
(b)	Acts on it on the sudden and before there is time for him to cool,
If the force used is not disproportionate to the provocation and it not likely to cause death or grievous bodily harm
(2)  Any question, whether or not-
            (a) any particular act or insult is likely to deprive an ordinary person of 
the power of self-control and induce him to assault the person by the 
insult is done of offered; or
(b)	In any particular case the person provoked was actually deprived by of the power of self-control; or
(c)	Any force used is disproportionate to the provocation is a question of fact.

268 Prevention of repetition of insult.
269. Self-defence against unprovoked assault

4. ISSUES.
(1)Does the state have a case against defendant?
(2) if so does the defendant have a lawful excuse or lawful cause for doing what he did?

5. BRIEF FACTS.
The Accusedand his friends were at his house drinking beer in a motor vehicle with their music on next to the defendants house at Masi Village Goroka Eastern Highlands Province and the defendant came around and told them to lower the volume of the music and told them that they drink out and come into the village and disturb the villageswhich is bad and the defendant and his friendsargued with him and in the course of argument the defendant threw a punch at the victim/complainant and they fought. The fight was broken up by those present at the time. The victim threatened to bring his boys to fight the defendant and his friends so the defendant’s friends got the defendant into the vehicle and left Masi village and went into town. The victim reported the incident to police and police arrested the Defendant and charged him.

(a)	POLICE CASE.

Police called one witness (Mr Paul Uvovo victim/complainant) and he gave evidence that on the 30th of November 2017 that he had a night out with friends and he came to Masi at around 330am to 430am. He went to a place called the riversidethere to refresh himself and when he came back he saw a new vehicle on the road with loud music on and he told the occupants of the vehicle to put the volume down. He also told them that you drink out and come in and disturb the community which is not good. The defendant and his friends who were in the vehicle and around the vehicle argued with him and he argued with them andas he walked past the vehicle,he slipped and fell and the defendant and his boys came and fought him andhe escaped. On Friday (1st of December 2017) he reported the matter to police.

On examination in chief the defendant said he was on the main road when he told the defendant and his boys to put the volume down. He did not know who was in the vehicle or who brought the vehicle into the village and parked it. The defendant and his boys responded and argued with him and the defendant was the first man to fight him.

On cross-examination the Defendant asked the following questions and the complainant/victims were recorded:

(1).Did I tell you to stop it and go or not and victim said many other boys were talking at the same time and I did not hear you say, you stop it and go. 
(2).In your statement you said I dragged you on the kolta(sealed road). Is that true or not. He replied that, that was not my statement. The statement I gave to police was different.

(3). Was the vehicle on the road when you go to the riverside or after you came back you saw it.In reply thevictim/complainant said the vehicle was not on the road when he went to the riverside and when he came back he saw the vehicle.The State case was weak in that it was not corroborated by independent witnesses or independent documentary evidence but the Defendant did not make a no case submission so I allowed the Defendant to present his caseto the court and he called two witnesses.

(b)  DEFENCE CASE.
(i)	EVIDENCE BY DEFENDANT.
The defendant did not give evidence himselfand called two witnesses namely Alex Apo and Nathan Gosowho gave evidence that the victim was drunk when he came and argued with the Defendant and his friends and the defendant told him to stop it and go away. The defendant’s brother who was not drunk at the material time gave evidence that the victim was drunk and he started arguing with the defendant and his friends who were drinking at the defendants place with music on. He told the victim/complainant that it was ArkiaGoso(Defendant) and tried to stop him but he did not listen and he continued arguing with them and fought with the defendant. After the fight the victim/complainant threatened to bring his friendsto fight the defendant and his friends so the Defendants friends took the defendant out of Masi village and went into Goroka town.

6. FINDINGS ON FACTS, LAW AND ISSUES.

(1)	It is trite law that the State has a duty to prove all the elements of the 
charge beyond reasonable doubt(SCR 1 of 1980(1981)PNGLR 22).The elements of assault as discussed by Magistrate Kaumi J as he then was in Police –vs- Bira (2010)PGDC 5 are:

(i) The defendant,
(a)directlyapplied force of some kind to the person of another,
OR(b) indirectly applied force of some kind to the person of another;
    OR(c) by bodily act or gesture attempted to apply force of some kind to the    
person of another when he either had or appeared to have the ability to 
apply such force;
     OR(d) by bodily act or gesture threatened to apply force of some kind to 
the person of another when he either had or appeared to have the 
ability to apply such force,
     AND,
(ii)	EITHER ;
(a)	The other person did not consent to what the Defendant did;
     OR (b) the other person did consent but only because of the false 
representation of fact made by the defendant who either knew it to be 
false or acted recklessly, not caring whether it was true or not,
AND
(iii)	The defendant had no lawful excuse or justification for his act’.

(2). I adopt the Kaumi’s discussion of elements enumerated herein-above.Hence the state has to prove beyond reasonable doubt that the Defendant assaulted the victim and the victim did not consent to his assault and the defendant has no reasonable excuse or lawful cause or justification for his act.

(3).It is trite law that a tribunal of fact cannot convict a person on uncorroborated evidence of a witness. In the case of State –vs- Andrew Sinogup(supra) Justice Canning’s found that interalia that the complainant’s witness was not corroborated by any other witnesses the complainant was no more impressive witness than the accused whose evidence was partially corroborated and the state failed to prove the element of intent so His Honour dismissed the charge of attempted murder on a no case submission and discharged the accused.

(4).The state’s casehere is weak in that the witnesses failed to get the relevant evidenceto supporteach element of the chargestated above in that the state failed to get a second witness or more to corroborate the evidence of the victim/complainant.

(5). Why the victim/complainant did not call relatives to give evidence even though the incident happened in his village where he and the defendant come from is in doubt and it is not good for the state’s case.

(6).	The victim/complainant’s medical report was not tendered into court as 
evidence to corroborate the victims evidence by the prosecution 
even though it was attached to the information against the defendant.
(7).	The victim/complainant when questioned by the defendant whether he 
actually dragged him onto the kolta(sealed road) he denied it saying  he gave 
adifferent story to the police and he did not elaborate on it.   

(8).	The Defendants witnesses evidence is more credible and can be trusted 
becausethe defendants brother was not drunk and his evidence can be trusted in that it corroborated the evidence of the defendants friend (Alex    Apo)who said the victim was drunk and he said ‘’Yutupela show off man putim volume blongyupela go down. Yupelausimkampanikanakam, emino private vehicle’’andstarted arguingwith them and in response theytold him we are using a private vehicle, stop and go away but thecomplainant/victim continued to argue. They offered him beer toobut he did not  accept it.When the defendant went to the back of the vehicle. The victim/complainant went to the sideof thevehicle and fought the defendantand they fought and we stopped them and Apotook the defendant to town.
Apo further said in cross-examination thathe took the Defendant to 	Goroka townbecause the victim/complainantthreatened to bring his boys over and fight them.

(9). The evidence in summary shows that the defendant and thevictim/complainant were drunk and fought each other and the police  were supposed to investigate this case properly and charge the defendant and victim for being involved in a fight under section 10 of the SOA and other relevant offences like causing a fight, using insulting words and causing noise pollution etc. but they failed to do that and they just charged the defendant and that is unfair and it is an unprofessional  approach on their part so many issues will remain unresolved.

(10). In relation to the crux issue of this case, the elements of assault,I noteare : (i)question of identity is not at issue here.(ii) whether the defendant was the first to throw a punch at the victim or the other way              around is in question.Victim/complainant said he walked to the side of the vehicle and slipped and fell and the defendant fought him. There is no corroborative evidence to confirm his story. The victim did throw the first punch and that is confirmed by the defendants twowitnesses have confirmed that fact. (iii).Whether the victim/complainant did not consent to what the defendant did as alleged by the state in the charge              is questionable because it did not produce evidence to show that              defendant threw the first punch.Furthermore it has not proved beyond reasonable doubt that the Defendant assaulted the complainant/victim first and the victim retaliated in self-defence.
             (iv).The victim/complainant was the aggressor in the circumstances
and he intended to assault the defendant and not the other way 
around. Evidence from the Defence witnesses shows clearly that the 
Defendant and his friends and relatives tried to put an end to the 
argument but the victim would not listen due to the fact that he was 
drunk and he threw the first punchand the defendant retaliated in self- 
defence. The action of the defendantwas in self-defence and defence 
of property and events at the same time. Furthermore the Defendant 
and his friends tried to put an end to nuisance and interruption in their 
activity by the victim/complainant which is natural for a person to do in 
thecircumstances.Hence the defence of provocation is 
available to him and the state has  failed to negate the same beyond
reasonable doubt.

(11).	If the state has proven all elements of assault thenthe defence of provocation would have given the defendant a complete defence or lawful excuse to the charge but that is all academic. Here the State failed to prove that the defendant was the first person to assault the victim/complainant that is throw the first punch and the defendants retaliatory punch has no reasonable cause or lawful excuse.HenceI find the Defendantnot guilty.

7.  ANSWER TO THE ISSUES.
(1)	No. The State has failed to prove beyond reasonable doubt almost 
	all the elements of assault.
(2) 	Yes but it is immaterial due to finding under 
	13(1) herein-above.

 8.  ORDER.

            1. The charge against the Defendant is dismissed.
            2. The defendant’s bail monies be refunded to him forthwith.

Counsel:
	
Lawyer for the Informant, Police Prosecutor,  MelaniUwano

Lawyer or the Defendant, In person