Papua New Guinea Law Reports - 1984
[1984] PNGLR 179
N469(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
AIPA PETER
V
JAMES KAPRIKO
Waigani
Bredmeyer J
9 March 1984
13 July 1984
CRIMINAL LAW - Particular offences - Unlawful assault - Summary charge - Provocation - Not a defence - Mitigating factor on sentence - “Extenuating circumstance” for exercise of dispositive powers - Summary Offences Act 1977, s. 6(1) - District Courts Act 1963, s. 138.
SUMMARY OFFENCES - Unlawful assault - Provocation - Not a defence - Mitigating factor on sentence - “Extenuating circumstance” for exercise of dispositive power - Summary Offences Act 1977, s. 6(1) - District Courts Act 1963, s. 138.
Held
On a charge of unlawful assault under the Summary Offences Act 1977, s. 6(1):
(a)      provocation is not available as a defence;
(b)      provocation may, however, be taken into account as an important factor on sentence;
(c)      provocation may be an “extenuating circumstance” for the purpose of exercising the dispositive sentencing powers under the District Courts Act 1963, s. 138.
Appeal
This was an appeal against sentence on a charge of unlawful assault made under the Summary Offences Act 1977, s. 6(1).
Editorial Note
The issue of provocation as a defence to assault under the Summary Offences Act 1977 has been affirmatively determined in S.C.R. No. 6 of 1984 to be reported in [1985] P.N.G.L.R.
Counsel
P. Injia, for the appellant.
P. Luben, for the respondent.
Cur. adv. vult.
13 July 1984
BREDMEYER J: This is an appeal against sentence. The appellant, a Chimbu woman, pleaded guilty to assault under s. 6(1) of the Summary Offences Act 1977 and received the minimum sentence of six months imprisonment with hard labour. She appealed immediately and was released on K20 cash bail, pending the hearing of the appeal, one week later. The appellant Aipa Peter was charged with assaulting Margaret Robert. The statement of facts said that Aipa punched Margaret on her left eye twice with her fist because Margaret used to go around with her husband. Before the magistrate Aipa said the statement of facts was correct but went on to say that:
“The complainant was going around with my husband. Once I saw her at the top of the hill. Then yesterday I saw them at the bus stop. I asked the complainant ‘you are going around with my husband?’ She said ‘No, it’s your husband’, so I pulled her and scratched her on the ears twice. Then she came first to the hotel and waited. I came and asked who she was waiting for and swung bilum at her and other woman hit her.”
This statement casts some doubt on the police statement of facts that it was two punches to the left eye. The defendant appears to be saying that she pulled her and then scratched her on the ears twice. She may also be saying that she swung a bilum at her. Where there is a difference in the statement of facts prepared by the police and the defendant’s version of the facts the magistrate should clarify this. He could ask the defendant again if she punched her twice on the left eye. But he did not ask this and it seems to me that she pleaded guilty on her version of the facts that the assault consisted of pulling the complainant and then scratching her on the ears twice. In this case the different versions of the facts are not particularly important because in either version it was a minor assault provoked by the fact that the defendant believed that the complainant was going around with her husband.
This is not an appeal against conviction but I want to say something about the law of provocation and assault under s. 6 of the Summary Offences Act 1977 because it is relevant to the question of sentence. Section 6 makes it an offence to unlawfully assault another person. This implies that some assaults are lawful, that some assaults are justified or excused by law. Is provocation a defence which makes an assault lawful under s. 6? In my view it is definitely not. This is because the law on whether an assault is lawful or unlawful is the common law of England and under that law provocation is not a defence to assault. In Archbold, Criminal Pleading Evidence and Practice (40th ed., 1970), pars 2642 to 2650, the defences of assault are set out and provocation is not among them. The defences are as follows:
(1)      Misadventure: e.g. if a horse runs away with its rider and runs into a man it is not assault.
(2)      Consent: e.g. when a person consents to surgery.
(3)      Lawful sport: e.g. boxing or wrestling.
(4)      Lawful correction: e.g. by a parent or teacher provided that the correction is moderate.
(5)      Self defence.
(6)      Defence of property.
(7)      Execution of process: e.g. when a policeman carries out a lawful arrest. Archbold, par. 2475 states that provocation does reduce murder to manslaughter but is irrelevant on the issue of guilt in all other crimes.
Provocation is no defence to an assault under s. 6. I wish to stress that, because it is erroneous, but all too easy to assume that the provocation defences given by s. 266 and s. 267 of the Criminal Code (Ch. No. 262) apply to the offence of assault under the Summary Offences Act. In my view those two sections very definitely do not apply to assault under the Summary Offences Act. It is clear from the Code, because of the express words of s. 22, that a number of specified defences — honest claim of right, mistake of fact, extraordinary emergency, insanity, intoxication, under-age, and compulsion — apply to all statutory offences in Papua New Guinea but on the rule expressio unius personae vel rei, est exclusio alterius, the express application of those general defences to all offences means that the provocation defence which is not contained in Divn 5 (ss 22-36 of the Code) does not apply to offences created outside the Code. Provocation is not a defence to assault under the Summary Offences Act, but it is an important mitigating factor, see Thomas, Principles of Sentencing (2nd ed. 1979) at 206. At common law provocation can reduce the punishment for assault which would otherwise have been given.
I apply that law now to the sentence given in this case. The defendant had real provocation in this case. She believed that the complainant was going around with her husband. The day before she had seen them together at the bus stop. On the day of the offence and immediately before the assault the defendant said “You are going around with my husband?” and the complainant said “No, it’s your husband.” The meaning of that is probably this: “I am not going around with your husband but rather he is going around with me, that is, he is taking the initiative and not me.” Whatever the precise implication, it seems clear to me that she was not denying going around with the defendant’s husband. All that would surely provoke any full-blooded Chimbu woman to assault the complainant. I consider that provocation amounts to an “extenuating circumstance” under s. 138 of the District Courts Act 1963, and, when coupled with the fact that the defendant had no prior convictions, would justify releasing the defendant on probation under that section. I consider that an appropriate punishment would have been to require the defendant to pay K100 cash recognizance to be of good behaviour and to appear for conviction and sentence when called on at any time during the period of one year. I consider that the failure to apply s. 138 in this case amounts to a substantial miscarriage of justice and that the appeal should be allowed. If I was the trial magistrate I would impose the order that I have mentioned and I have the power to do so on this appeal. However in this case the defendant has been punished in another way. She has served one week in prison before being released on bail and that is adequate punishment for this assault and I do not propose to impose the order which I think should have been imposed in the first place.
The appeal will be allowed and in the circumstances no further punishment will be imposed.
Appeal allowed.
Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: Public Prosecutor.