N473(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 23 OF 1984

BETWEEN:

MOGIA WIDU
APPELLANT

AND:

KODA UBIA
RESPONDENT

Kundiawa
11 May 1984

PROVOCATION IS A DEFENCE TO ASSAULT UNDER THE SUMMARY OFFENCES ACT - FAILURE BY MAGISTRATE TO EXAMINE SURROUNDING CIRCUMSTANCES AFTER PROVOCATION MENTIONED DURING ALLOCUTUS - DUTY TO MAKE ENQUIRY ESPECIALLY HEAVY WHERE MINIMUM PENALTY OFFENCES ARE CHARGED.

Authority:
Ito Memairi v. Nelson Guia Unreported National Court Judgment N459(M) dated 11 April 1984

Legislation:
District Courts Act S.138
Summary Offences Act S.6(1)
Criminal Code SS.266, 267

PRATT J: The appellant was convicted on his own plea before the District Court at Chuave on 16th December 1983 of an offence of assault under s.6(1) of the Summary Offences Act. At the time of his conviction the sentence was a mandatory six months. His Worship refers to s.138 of the District Courts Act in his reasons for judgment and states that in his view the facts of the case did not warrant the application of that section. I do not propose to traverse the facts here in my judgment. There is a slight difference between what was put before the Magistrate and what has been attempted to be put before me, but I do not think it is of sufficient importance to concern myself with the fact that there is no affidavit evidence on file. Perhaps a little more important is the absence of affidavit material concerning the antecedents, background and so forth of the appellant. I would point out to counsel that there is a duty to ensure that this material does go on affidavit rather than be given from the bar table, if for no other purpose than to apprise the respondent of the material upon which counsel intends to rely in the appeal. However, very fairly, Mr. Boyce has not made an issue of this and I have accepted it in the form in which it was tendered because I am being asked to exercise the powers of the District Court sitting here as the Court of Appeal.

As to ground 1 of the appeal I think that the appellant's statement on the allocutus, and even indeed, the statement contained in the statement of facts before the Magistrate, should have put the Magistrate immediately on guard as to the existence or otherwise of the defence of provocation. It has been suggested I understand elsewhere, that as the assault covered in the charge before the Magistrate was not contained in the Criminal Code it may be doubtful whether the defence of provocation under the Criminal Code is available to those charged with the summary offence. During argument I made it quite clear that in my view such a proposition was entirely without merit and seemed to me to be against all principles enunciated in this jurisdiction for many years. The fact that provocation is not contained in the offences covered by Division 5 Part I which is applicable to all offences in the State by virtue of s.22 is quite beside the point. There is nothing contained in the wording of Sections 266 and 267 to justify any attempt at limiting the application of the section to those assaults only mentioned in the Code. However, learned counsel for the respondent did not press the issue and therefore it is not necessary for me to say anything more about it.

Whether or not, of course, calling a person "Satan" amounts to provocation could only be determined by the evidence before the tribunal itself. I would think that in certain circumstances it certainly could amount to provocation. There are so many factors which would operate in such a case it could only be with a knowledge of all those factors that one could come to a final decision. The learned Magistrate, in my view, should have inquired much more deeply into the matter by means of entering a plea of not guilty, despite what the then defendant had said to him about it being true, so that he could investigate whether or not this defence was substantiated in fact and in law. He failed to do this and in so doing he failed to carry out his full commitment as a Magistrate. I would point out again that there is a special responsibility on the shoulders of the members of the bench when dealing with minimum penalty offences to ensure that they investigate every possibility. It is surely not necessary for me to point out to any Magistrate, the difficulties which defendants may labour under when they appear in a court of law with all its formality, its aura of officialdom and its unfamiliarity. We are all very much aware of that aspect. Clearly, therefore, the first ground of appeal must be upheld.

The second ground has been abandoned and I, therefore, go to the third ground of appeal namely the learned Magistrate failed to exercise his discretion properly under s.138 of the District Courts Act. (The Court then dealt with a number of aspects under s.138 of the District Courts Act, but see Ito Memairi v. Nelson Guia N459(M).)
The final problem is what I am to do with the appellant. I am very conscious of the fact that for reasons unknown to me the appellant has almost served out completely the entire sentence imposed upon him. I have upheld the first ground dealing with provocation. I may not have made it clear, but I do uphold the third ground under s.138. As I have done on several previous occasions I will not remit this matter back for re-hearing because it would mean that under the present minimum penalty legislation if he were to be convicted on a re-hearing he must be given an automatic sentence of six months. This would then mean he would end up serving 11 ½ months for the same offence. In my view that would be a most unjust result and for that reason alone I shall not send the matter back for re-hearing. There is a further ground however. I would certainly exercise my discretion under s.138 and I think the Magistrate should have done likewise. This therefore means that the whole purpose of having a matter re-heard, after serving 5 ½ months in gaol, would be somewhat pointless and academic. For this reason also I will not direct the matter be re-heard.

Lawyer for the Appellant: N. Kirriwom, Public Solicitor
Counsel: Mr. Injia
Lawyer for the Respondent: L. Gavara-Nanu, Public Prosecutor
Counsel: Mr. Boyce