N470(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

(APPEAL 35 OF 1984)

JOHN MONGO & LAZARUS PISU

V.

SIMON SAUN

Waigani: Bredmeyer J
9 March 1984, 13 July 1984

CRIMINAL LAW - assault - Summary Offences Act, s.6. - provocation - extenuating circumstances - District Courts Act, s.138.

Provocation is not a defence to assault under Summary Offences Act, s.6 but can be an ‘extenuating’ circumstance under District Courts Act, s.138

Counsel:
P. Inje for the appellants
P. Lubin for the respondent

Cur. adv. vult.

13 July 1984

BREDMEYER J: This is an appeal against sentence. The appellants assaulted another man on 18 January 1984, they pleaded guilty, and were given the minimum penalty under s.6(1) Summary Offences Act of 6 months imprisonment. The statement of facts prepared by the police which was read out to the defendants was as follows:

"On 17 January 1984 at 4 p.m. at Rakatani Street, Tokarara, I Const. Savin and two other policemen were on a mobile patrol when we were called upon to attend to a complaint at Tokarara Police Station. At the Police Station the complainant, Kaare Aiva, stated that the defendants ended up assaulting him when the complainant’s and the defendant’s cars nearly ended up in an accident. The complainant was trying to talk to the defendants John Mongo and Lazarus Pisu, at that time. The defendants at that time were drunk when the complainant was assaulted. The defendants both admitted assaulting the complainant but stated they nearly had an accident with the complainant and thats why they assaulted him."

The defendants admitted the assault, they said "we fought him". They said that one or two of the facts in the statement of facts were not correct and one defendant speaking for both of them gave his explanation as follows:

"This complainant did not talk to us. He was on the wrong side and wanted to cross and could have caused a big accident. Police did not weigh reasons as to why we fought. We hit him because he was parked on a curve and as we came close, he took off so we came and stopped and hit him. Whose fault would it be if I did not apply the brakes? Thats why the police should weigh our evidence or statement as to why we hit him before charging us. The complainant was using a company car and I was using my own private car and if the accident happened I would face more expenses. Also, if people die, who would pay the compensation? That is all."

It is clear on the facts that the defendants assaulted the complainant acting under provocation. They believed that the defendant had taken off suddenly in his car and nearly caused the collision with their vehicle. As I have said in Aipa Peter v. James Kapriko N469(M) (Unreported decision of 13 July 1984) provocation is not a defence to assault under s.6 Summary Offences Act. The offence under that section is "unlawful assault" and whether an assault is lawful or unlawful is to be determined by the common law of England pre-Independence. Under the common law provocation is not a defence to assault but is an important and common mitigating factor to reduce the penalty. This contrasts with the Code offence of assault s.335 where provocation is a complete defence under ss.266 and 267. Those latter sections do not apply to s.6 Summary Offences Act because they are not included within that division of the Code (Division 5 i.e. s.22-36) which is expressed to be of general application to all offences under other laws.

The particulars of the assault are not given in the statement of facts but a note in the magistrate’s handwriting on the information says that "they slapped the complainant with their fists", which is not totally clear but suggests to me that they punched the complainant.

At common law provocation is a mitigating factor or circumstance see Thomas, Principles of Sentencing (2nd ed.) p.206. In this case each defendant had no prior convictions; one was age 34, married, one child, and unemployed; the other was age 26, married, a graduate in economics, 2 children, employed as a public servant at Clerk Class 9 level. If the penalty had been wide open I consider that the defendants’ personal particulars, the nature of the assault and the provocation which prompted it, would have saved these men from a jail term and that a fine, with or without some compensation, would have been the appropriate penalty. I have said that at common law provocation is a mitigating factor or circumstances and I consider that it is also an "extenuating circumstance" for the purpose of s.138 District Courts Act. The word "extenuate" is defined in the Concise Oxford Dictionary to mean "to lessen the seeming magnitude of guilt (or of an offence) by a partial excuse".

I consider that there was a substantial miscarriage of justice in this case in that the magistrate did not regard provocation as an extenuating circumstance under s.138. I propose therefore to allow the appeal and apply s.138 to this case. To do so I must also quash the conviction. I apply s.138 and say that because of the extenuating circumstances under which the offence was committed, I consider it expedient to release the defendants on probation. I therefore require each defendant to enter into a K50 cash recognizance to be of good behaviour and to appear for conviction and sentence when called upon at anytime within two years from 18th January 1984 which is the date of the conviction.

Lawyer for the Appellants - Public Solicitor
Lawyer for the Respondent - Public Prosecutor