DC9014

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS SUMMARY JURISDICTION]

CB NO 2389 &2390 OF 2021

BETWEEN

THE POLCE
Informant

AND

MAUREEN REU AND SYLVIA REU
Defendants

Boroko: O Ore Magistrate

2022: 05th August

SUMMARY OFFENCE – Unlawful Assault – s 6 (3)– Summary Offences Act 1977.

SUMMARY OFFENCE – Trial- Whether the Defendant Unlawfully Assaulted the victim Elements of the offence discussed –Elements not proven – Defence of Provocation – Defence made out - Defendants found Not Guilty and discharged.

Case Cited
SCR No 6 of 1984; Re Provocation [1985] PNGLR 455; [1985] PNGLR 31
State v Roth [2018] PGNC 470; N7591
The State v Alphonse Dumui (2009) N3686
The State v Roland Rebon (2008) N3495,
Police v Kongos [2021] PGDC 127; DC6082 (2 September 2021)

Legislations Cited
Criminal Code Act Chapter 262
Summary Offences Act 1977

Counsel
Senior Sergeant Hombiku S, for the Informant
Defendants in person

DECISION ON VERDICT

05th August, 2022

1.	O Ore, Magistrate: This is my decision on the verdict for the Defendants who pleaded not guilty to the summary offence of Unlawful Assault. The decision is handed down after trial was conducted followed by respective parties’ submissions on verdict.

BACKGROUND

Incident

2.	The incident that gave rise to the charge against the Defendants happened at the Legal Directorate Office in the Police Headquarters at Konedobu, National Capital District. It is alleged that the Defendants unlawfully assaulted Elizabeth Salangia Sangkol, a civilian employed by the Royal Papua New Guinea Constabulary as a personal assistant to the Director Legal Services of the RPNGC.

Information

3.	An information was laid against the Defendants on 26th of August 2021 containing the following charge:

“…. on the 12th of January 2021, at Konedobu, Police Head Quarters- NCD in Papua New Guinea
1.	Sylvia REU aged 46 of Buluwara Village, Talasea, West New Britain
2.	Maureen REU aged 47 of Buluwara Village, Talasea, West New Britain
 Did each and severally unlawfully assaulted another person namely Elizabeth Salangia SANGKOL by punching her with folded fists and furniture.”

4.	The information was laid under Section 6 (3) of the Summary Offences Act Chapter 264.

Arraignment 

5.	The Defendants pleaded not guilty to the charge when arraigned. The matter proceeded to trial. 

ISSUE

6.	The issue in this case is whether the assault occasioned by the Defendants on Elizabeth Salangia Sangkol was unlawful.

LAW

7.	The Defendants are charged for unlawful assault under Section 6 (3) of the Summary Offences Act. This section is in the following words:

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

8.	The Defendants do not deny assaulting Elizabeth Sangkol. In fact, they claim that what they did was done out of frustration. They say that they were provoked. They raised the statutory defence of provocation. Sections 266 and 267 of the Criminal Code Act provides for this defence. Both sections of the Criminal Code are quoted below.

“266. PROVOCATION.
(1) Subject to this section, “provocation” used with reference to an offence of which an
assault is an element, means a wrongful act or insult of such a nature as to be likely, when done–
(a) to an ordinary person; or
(b) in the presence of an ordinary person to another person–
(i) who is under his immediate care; or
(ii) to whom he stands–
(A) in a conjugal, parental, filial or fraternal relationship; or
(B) in the relation of master or servant,
to deprive him of the power of self-control, and to induce him to assault the person by whom the
act or insult is done or offered......................”

“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 his passion to cool,
if the force used is not disproportionate to the provocation, and is not intended to cause, and is 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 to induce him to assault the person by whom the act or insult is
done or offered; or
(b) in any particular case, the person provoked was actually deprived by the
provocation of the power of self-control; or
(c) any force used is disproportionate to the provocation,
is a question of fact.”

9.	By raising the Defence of Provocation, the onus now falls on the prosecution to disprove at least one of the elements of this Defence. The elements of this Defence have been discussed in a number of National and District Court cases. In Police v Kongos [2021] PGDC 127; DC6082 (2 September 2021), the Court citing several National Court cases (The State v Roland Rebon (2008) N3495, The State v Alphonse Dumui (2009) N3686 and State v Roth [2018] PGNC 470; N7591), found the elements of this Defence to be as follows:

a.	the accused was deprived by the provocation of the power of self-control; and
b.	the accused acted on the provocation on the sudden and before there was time for his passion to cool; and
c.	the force used was:
i.	not disproportionate to the provocation; and
ii.	not intended to cause death or grievous bodily harm
iii.	not likely to cause death or grievous bodily harm.

10.	In contrast to having to prove the elements of an offence beyond reasonable doubt, the prosecution in this case will have to disprove one or more of the elements for the alleged assault to be found unlawful (Police v Kongos [2021] PGDC 127; DC6082 (2 September 2021)). 

EVIDENCE

Police Case

11.	Three (3) witnesses were called in by the Police Prosecutor to give evidence. The first witness was Constable Joshua Kraip. He was the lead investigator. Based on his investigations, he found that the Defendants had unlawfully assaulted the Elizabeth Sangkol and so had them arrested. 

12.	The Police second witness is Senior Constable Lekson Lekari Polo. He is a Lawyer employed by the Police. He testified on is recollection of what had happened on the 12th of January 2021. He had also filed an Affidavit sworn and file on the 19th of November 2021. This Affidavit was latter shown to him and tendered into evidence.

13.	The third witness called in by the Police is Elizabeth Salangia Sangkol. She is the victim in this case. Her story is that she was unlawfully assaulted by both Defendants at her Office at Konedobu. She also filed and affidavit sworn 12th November 2021 and filed 19th November 2021 detailing her account of the what transpired that day. Her affidavit was later identified by her and after no objection from the Defendants was tendered and entered in evidence. 

Defence Case

14.	The Defendants did not call any other witnesses apart from themselves. They had earlier on filed their Affidavits both sworn on 16th November 2021 and filed 22nd November 2022. These Affidavits were tendered into evidence later on after they had given their oral testimony. They raise the Defence of Provocation in their respective testimonies saying that the alleged unlawful assault happened as a result of being provoked by Elizabeth Salangia Sangkol.

DISCUSSION OF EVIDENCE

15.	The Police Prosecution’s case is that both Defendants had unlawfully assaulted the Victim. The victim gave a detailed account of how she was assaulted. She thought Sylvia Reu had approached her because of what had happened that morning and assaulted her. 

16.	The Defendants on the other hand do not deny assaulting the Defendant but say that they were provoked into assaulting her. Sylvia Reu raised several reasons why she was provoked into assaulting the Victim. She said that she was provoked into assaulting the Victim because of ongoing issues between her sister Maureen Reu and the Victim. Her sister Maureen has been diagnosed with HIV and she was not happy when she heard from her sister that the Victim had called her ex-partner and told him of her sister’s health status and also asked him if he knew that her sister whilst been HIV positive was sleeping with other man. She said that this amounted to stigmatization and discrimination. She felt that her sister was badly treated by the Victim and other staff of the Legal Directorate. What happened that morning was the last straw and as a caregiver and concerned sister, she went straight to Police Headquarters that day to confront the Victim. 

17.	At the Legal Directorate office, she confronted the Victim and asked her what her problem was with Maureen Reu to which the Victim stood up and yelled back talking on top her voice. This the provoked her to move forward and slap her once. As she was walking away, the Victim threw a bottle of hand sanitizer at her and missed her. Maureen who had walked in, witnessed this and went over and slapped her and scuffle occurred between the three of them. Sergeant Awoi stepped in and stopped the scuffle.

18.	Maureen Reu testified in Court that she is a person living with HIV. She says that she has been subjected to workplace stigmatization and discrimination. The Victim had called her ex-husband Peter Channel and accused him of having an affair with her and told him that she was HIV positive and also having sex with other men. This added up to the ill feeling amongst them. At eh Police Head Quarters, she was not there when the initial scuffle between her sister and the Victim started. She said that she only came in later and opened the door and saw her sister telling the Victim to sit down who was yelling back. She witnessed the Victim picking up a full bottle of hand sanitizer and throwing it at Sylvia missing her. When seeing this, she then went over and slapped the Victim. A scuffle ensued and they were separated by Senior Constable Polo and Sergeant Awoi.

19.	The evidence by the Defendants corroborates each other’s story. The evidence given by both Defendants have not been disputed or disproved during trial.  

UNDISPUTED FACTS

20.	The following are the undisputed facts:

a.	At the time of the alleged unlawful assault, all parties worked together at the Police Headquarters at Konedobu.

b.	The Defendants are sisters and both assaulted the Victim.

c.	Defendant Maureen Reu is a person living with HIV and Sylvia Reu is her care giver.

DISPUTED FACTS

21.	The only disputed fact in this matter is that the Defendants were provoked by the Victim.

FINDINGS
22.	There is no dispute to the fact that the Victim was assaulted by both Maureen Reu and Sylvia Reu. However, both Defendants have raised the defence of provocation which is a valid defence in law and is prescribed for under the Criminal Code Act. In SCR No 6 of 1984; Re Provocation [1985] PNGLR 455; [1985] PNGLR 31, the Supreme Court recognized the defence of provocation under sections 276 and 277 of the Criminal Code Act to be a valid defence applicable to the charge of Unlawful Assault under Section 6 (3) of the Summary Offences Act.

23.	Having raised this defence, it is now required off the Prosecution to disprove the elements of the provocation. Disproving only one element will render the assault unlawful.

24.	Considering the evidence before me and also the applicable law, I find that the Defendants have proven that the defence of provocation does exist. My reasons are as follows.

25.	From the evidence before me, the Victim and the Defendants had been having ill feelings towards each other for some time. These grudges emanated from the work place and eventually encroached into their private lives especially Maureen Reu’s. Maureen Reu who is a person living with HIV was subject to workplace discrimination and stigmatization in which the Victim was seen to be part of. These instances were reported to their responsible bosses without any action taken adding on to their frustration which had been building up for some time. The Prosecution did not test this evidence during trial. The events leading up to the assault on the 12th of January added on to this situation.

26.	Provocation may happen instantly or over a period of time. In Rumints, Regina v [1962] PGLwRp 6; [1963] PNGLR 81 (29 august 1962), the Court said:

“… exculpatory provocation has been found to exist notwithstanding the passage of quiet a substantial time from the occurrence of the act constituting provocation.”

27.	In this sense, there has to be a buildup of pressure caused by some form of prolonged action or speech that would make a person angry. Eventually after a while, a person will give in and in most cases the smallest of actions or speech will lead to an instant reaction. This is the case here.

28.	Evidence shows that Sylvia Reu had had enough of her sister being the victim of stigmatization and discrimination. As a caregiver and sister, she was provoked when she saw her sister in tears and heard of her conflict with the Victim that morning, she decided to confront the Victim. With that buildup of pressure inside her, she drove to the office and confronted the Victim in her office. She was further provoked to the point where she reacted instantly when the Victim responded to her question by shouting at her and went and slapped her once.

29.	Maureen Reu on the other hand was provoked when she stepped into the office and saw the Victim missing her sister with a full hand sanitizer bottle. Her instant reaction was to help her sister which she did by going over and slapping the Defendant. What happened next was a scuffle as confirmed by all witnesses through their testimonies. 

30.	Senior Sergeant Hombiku argued in his submissions that Sylvia Reu reacted to evidence that was hearsay. I do not accept this submission because what information she acted upon had been confirmed by the Victim and Lekson Polo when they gave evidence. As to Maureen Reu’s status as a person living with HIV and being discriminated and stigmatized, she herself testified of this and how she was treated at the work place. Further evidence of this is also found in her Affidavit which was tendered into Court as documentary evidence. The makers of the statements were in court and were cross-examined by the prosecutions. Evidence only becomes hearsay when the makers of statements are not brought before the Court to give evidence. In the National Court case Gopave v Kugame [2003] PGNC 34; N2482 (29 October 2003) said this in regards to the hearsay rule:

“It will not be hearsay if the maker of the statement is brought before the Court and evidence led on the statement with opportunity given to Defence Counsel for cross-examination.”

31.	Given the above reasons, I refuse the submissions by the Prosecution and find the evidence relied on by Sylvia Rei not to be hearsay.

32.	I also find that the force used was not disproportionate to the provocation, not intended to and not likely to cause death or grievous bodily harm. The medical report and the photographs produced by the prosecution support this. These evidences do not show any life-threatening injuries or serious injuries showing that the force used was disproportionate to the provocation. Evidence by Lekson Polo also shows that there was a minor scuffle between the Defendants and the Complainant. There was pushing, pulling and scratching during the altercation which did not last long as parties were separated.

33.	As it is, the Police have failed to disprove any of the elements of provocation. I therefore find the Defence of provocation to be valid and the assault lawful.

CONCLUSION 

34.	In light of the above, I now come to the conclusion that the Prosecution has failed to disprove the elements of provocation leaving the assault on the Complainant not unlawful.

ORDER

35.	The following are the formal orders of the Court:

a.	Maureen Reu and Sylvia Reu are found not guilty of the charge of Unlawful Assault contrary to section 6 (3) of the Summary Offences Act 1977 and are acquitted accordingly.
b.	This matter is dismissed.
c.	The Defendants are discharged.
d.	The Defendants bail monies are to be refunded to them forthwith.

Lawyer for the Police 			: 	Police Prosecutions
Lawyer for the Defendants 		:	In person