DC8029
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
BETWEEN
POLICE
v
Wilfred Sapulasi & Avonka Banupa
-Defendant-
GOROKA: B GORE, Magistrate
2021:  24th of March & 1st and 2nd of June & 3rd of September

Decision on Verdict

Criminal Law; Summary Offence Act part iii, Protection of persons. Section 6 (3). Both accused pleaded not guilty to the charge of unlawful assault and trial ensued.
Criminal Law, defence, Accused defence in two  folds ,firstly, no intention / motive to assault the victims, secondly  they raise the defence of lawful excuse/justifiable given the scenario they were in, i.e., they were merely stopping the victims from coming out from the store as part of their duties as security guard at the store. 
Prosecution failed to negative defence raised and also discharge its burden of proof on the elements of the charge, accused persons found not guilty.
CASE CITED:
Brown & DUNN
Woolmington v DPP [1935] AC 462

LEGISLATIONS:
Summary Offences Act
Criminal Code Act
COUNSEL	
Prosecution-GITENE 
Mr Pilisa of Pilisa lawyers for the accused persons 
FACTS
1.	At the relevant time, both accused were security guards at the main entrance of Send Da Super Market in Goroka, the complainants were customers at the store at the relevant time. One of the complainants Alpha Jacob had ‘buai stains’ on her lips when in the store, ‘Buai’ was not allowed in the store. Having seen the stain, the accused persons stopped her and her friend from coming out and signal them to step aside and allow other shoppers to come out.
2.	The complainants were kept there for about 2 to 3 minutes. The girls realising that they were detained, planned to come out, complainant Adashar Dimur rushed  out without  being notice, Wilfred Sapulasi tried to pull her shirt back but she struggled and fled and Alpha Jacob tried to follow when the accused Avonka Banufa  pulled the new tongs she bought with her hands and stopped her from coming out.
3.	The complainant Adesha reported the matter to her father who is a police officer and a police vehicle loaded with policemen went into the store, the police officers assaulted the accused persons and brought them to the station and further assaulted them at the station. Thereafter both accused were charged with unlawful assault.

ELEMENTS OF THE CHARGE
4.	To secure a conviction against the accused persons for the charge of unlawful assault pursuant to s.6 (3), the prosecution must establish the following elements of the charge
i.	a person
ii.	who unlawfully assault by application of force
iii.	on another person	
ISSUE
Whether or not the accused persons unlawfully assaulted the victims		
DEFENCE

5.	Both accused denied having any intention to assault the victims and further said they were merely stopping the victims from coming out because one of the victims Alpa Jacob had buai stain on her mouth. The force they applied was enough to stop complainants from coming out so they can be questioned and fined for chewing buai’ in store .No excessive force was employed with the intention / motive to assault the complainants.

6.	Secondly the accused said they were merely doing their duty as security guards hence their actions are lawful or justifiable given the scenario they were in. The police exaggerate this allegation as they assaulted the accuse persons causing serious injuries to them prior to arrest.

PROSECUTION EVIDENCE
7.	Prosecution called the two victims plus the arresting officer Sgt Asimani, Both victims basically gave account of the incident in the store by way of affidavit dated 25th of March 2021 and marked with Exhibit ‘C’ & ‘D’ respectively.
8.	Alpha Jacob said after buying her  tongs ,they were about to come out  when accused persons hold onto their shirts and told them to remain in the store, complainants waited in the store for  a long time. Whilst standing there they saw a man with ‘buai’ in his mouth being allowed by the accused person to go out of the store without being questioned so her friend Adesha questioned the  accused why they allowed that person to come out and not them, then she  rushed out pulling Alpha’s hand but she was stopped by accused Avonka Banupa. She said the other accused pulled Adashar Dimur but she struggle and went out .Accused Avonka pulled Alpha Jacob and told her to stay at the same place. Adashar informed their parents and the police went in and fought with the accused persons.
9.	Adashar Dimur also gave similar version of the story. she said she pulled her friend hand and tried to come out  when the  accused Wilfred Sapulasi pulled her hand to go back into the store but she struggle and free her hand from the accused and went and reported the incident to their parents. She said victim Alpa was released much later.
10.	Sgt Asimani evidence is of no relevance to the issue at trial, he basically said he arrested the accused persons upon complaint from the victims and her parents. He said he saw the accused person had bruises on their face but did not know what happen to them.
DEFENCE EVIDENCE

DOCUMENTS TENDERED BY CONSENT: CCTV footage of the incident from the store marked as Exhibit A.

11.	Both accused person and another witness all gave very similar and brief sworn evidence, both said they stopped the two victims and told them to stand on the side because one of the complainants had ‘buai’ stain on her mouth; they were there for about 2 to 3 minutes while they were checking on other customers coming out.
12.	However the victims were rushing out, Adashar left already without their notice and Alpha was following her when accused Avonka pulled the new tongs she bought and told her to remain inside. They did not intent to assaults the two girls, they did not exert any excessive force, they were merely doing their work as security guards stopping to question them on the ‘buai’ stain, However they reported their fathers who are police officers who arrived at the store and assaulted them at the store, inside the police vehicle and even at the police station before being arrested and charged. The police officers swore and even threaten them. They denied the charge of unlawful assault on the complainants.

LAWS IN RELATION TO THE OFFENCE.
Unlawful assault is an offence both under the summary offences Act and Criminal Code Act.
Unlawful Assault under Section 6 of Summary offences Act.
13.	(1) In this section, “applies force” includes the 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.
14.	. (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 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.
15.	(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 years.
16.	(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 the property of the person occasioned by or in the course of the commission of the offence, as it considers just.

DEFENCE OF LAWFUL JUSTIFICATION UNDER SUMMARY OFFENCES ACT.
17.	Section 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 proof that the act was done with lawful excuse or lawful cause, as the case may be, is on the person charged with the offence.
ASSAULT UNDER THE CRIMINAL CODE
SECTION 243 OF CRIMINAL CODE
Division 1. – Assaults and Violence to the Person Generally: Justification and Excuse.
18.	(1) A person who– (a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, 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 to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault. 
19.	(2) A reference in Subsection (1) to the application of force includes a reference to the application of heat, light, electrical force, gas, odour, or any other substance or thing in such a degree as to cause injury or personal discomfort.
20.	(3) A male person under the age of 17 years shall be deemed not to be capable of consenting to any act by any other male person that but for such consent would be an indecent assault.
LAWFUL JUSTIFICATION;
SECTION 244 of Summary offences Act.
21.	(1) An assault is unlawful and constitutes an offence unless it is authorized, justified or excused by law. (2) The application of force by one person to the person of another may be unlawful, even if it is done with the consent of that other person.

SUBMISSIONS BY PARTIES.

22.	Both parties made brief verbal submissions, lawyer for the accused said defense evidence must be accepted as the true version of what happen at the store as their story is corroborated by the CCTV footage. There was no intentional application of force on the victims, the victims were trying to escape hence inviting the accused persons to acted in the manner they did, merely stopping the victims as part of their duties as security guards. Their counsel further submitted that their actions of the accused are authorized, excused by law or justifiable given their job as security guards.

23.	Prosecution submitted that the accused has not right to assault the victims, as to the issue of intention, he submitted that the victims were suspected of chewing ‘buai’ inside the store and that gives the accused reasons to assault the victims. Prosecution further submitted that the victims are witness of truth and their evidence must be accepted
ASSESSMENT ON EVIDENCE
10.1 Was there any intention/motive to unlawful assault the victim?
24.	Quick search on Google for definition of intention leads me to Cornell Law School website which defines intent in these terms.
‘’Intention generally refers to the mental aspect behind an action.in criminal law, criminal intent also known as mens rea is one of the two elements that must be proven in order to secure a conviction ,the other being the act /actus reus. Some jurisdiction further classifies intent into general and specific.it is sometimes difficult to draw clear distinction between the two modes of intent. But the supreme court had held that general intent .prosecution only need to prove that the defendant intent to do the action in question were as proving specific intent would require prosecution to prove that defendant intended to bring about a specific consequence through his or her action.

Section 24 of Criminal Code define intention as follows
 (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for
 (a) An act or omission that occurs independently of the exercise of his will; 
Or (b) an event that occurs by accident. 
(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
 (3) Unless otherwise expressly declared, the motive by which a person is induced– (a) to do or omit to do an act; or (b) to form an intention, is immaterial so far as regards criminal responsibility.
The accused persons in this case had no intention either general of specific of causing assault to the victims.

10.2. Was the action of the accused justifiable or amount to lawful excuse in the circumstances? S.2 of the Summary Offences Act.
25.	What is justifiable or lawful excuse? The State v.Peter Wamna N1342, held that “lawful excuse” means any exculpatory defense provided by the Criminal Code, the Constitution, or any other relevant statutory provision or written law, but does not include any exculpatory defense found in the underlying law, namely common law and customary law: Rex Kupu v Demas Doria [1988-89] PNGLR 1, State v Magracia [1984] PNGLR 117 considered.

26.	The onus is on the accused to satisfy the Court, on the balance of probabilities, the existence of a “lawful excuse” for acting in the manner they did.

27.	Apply these defenses to the circumstances of the present case, As security guard providing security for purpose of keeping a watch on theft, littering, buai stains in the shop, both were only doing their work by stopping the complainants after seeing Alfa with ‘buai stains’ on her month, Both accused only reacted to stop the complainants when they tried to escape, the force applied were reasonable given the scenario. CCTV footage confirms there were no serious assaults with any force applied and most importantly the incident lasted for few seconds only. 
28.	I have the benefit of hearing evidence from both parties in court. There are three major inconsistences in the victims’ evidence which goes to question their credibility. Firstly both victims evidence is that both were assaulted twice, one when they were initially about to come out of the gate after buying their tongs and second time after being detained but the CCTV footage from the store shows no assault on the first instance, the victims were only stopped by the accused person and directed to step aside. 
29.	Secondly both witness said accused person applied excessive force to assault them ,the CCTV does not show any application of force, they basically touch the victims to stopped them from coming out.
30.	Thirdly both complainants’ said they were kept there at the store for around 5 to 10 minutes however evidence from accused person corroborated with CCTV footage shows only 2 to three minutes.
31.	Motive to lie, there is sufficient evidence before this court that the accused persons were severally beaten by the police officers, that’s from the CCTV, evidence from state witness Sgt Asimani and both accused themselves. As such complainants have a reason to come to court to exaggerate their stories to cover up for what the police officers had done to the accused persons.
32.	The truth is not so easy to find and the court has to always do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension than what is illogical or plain fallacy. That is why there is an added safety valve in the criminal law, which requires that the court must be satisfied beyond reasonable doubt of guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused (see Woolmington v DPP [1935] AC 462).
ELEMENTS OF THE CHARGE
33.	Does the evidence satisfy the elements of the offence, The accused persons were implicated  however as to the elements of unlawfully assault by application of force on another person, we say that element has not been proved because the conduct of the accused in that moment was merely stopping the victims who were trying to escape through the door, or in other words the accused were only responding to the victims attempt to escape from the store before being dealt with, there were no application of force on the complainants.

CONCLUSION
I am satisfied that the Prosecution has not proven its case beyond reasonable doubt. 
1.	The accused persons are not guilty of the charge of unlawful assault.
2.	Both are acquitted and their respective bail money be refunded forthwith.