N2052

Papua New Guinea

[In the National Court of Justice]

Appeal No: 291 of 2000

Between:

ROBIN ANGOPA
Appellant

And:

MARTIN LAKARI
Respondent

Wabag	:	Jalina, J.
12 and 13 March, 2001

Practice and Procedure – District Court – Request by defendant to magistrate to issue witness summons – Magistrate refusing to issue witness summons – Whether magistrate biased. 

Counsel:
P. Potane for Appellant.
J. Kesan for Respondent.

13 March, 2001

JALINA, J.	This is an appeal against an order of the Wabag District Court whereby on 12th September, 2000 it convicted the Appellant of assault and fined him K100.00 in default 3 months imprisonment. The Appellant was also ordered to pay the victim K200.00 compensation within 21 days from the date of the order. The Appellant appeals against that decision and relies on Five (5) Grounds.

In the First Ground the Appellant alleges bias and error of law in the magistrate refusing his application to summon or issue subpoena to three (3) policemen who were eye witnesses to give evidence as they were reluctant to appear to give evidence against the victim who was their immediate boss.

In the Second Ground the Appellant also alleges bias against the magistrate for refusing to adjourn the hearing to give time him to take village people who were eye witnesses to give evidence on his behalf because they were initially reluctant to give evidence against a policeman.

In the Third Ground the Appellant alleges error on the part of the magistrate in finding that the Appellant as a subordinate would not assault his immediate boss and the assault on him was provoked by his actions.

In the Fourth Ground the Appellant alleges error of law on the part of the magistrate in refusing him the right to cross-examine the victim and his wife who were the only prosecution witnesses.

And in his Fifth and final Ground he alleges that there was a mistrial where grave injustice was done to him when the court refused to accept his defence of provocation or self-defence in the absence of any eye witnesses to corroborate his evidence or statement.

I have considered the submission by the lawyer for the Appellant as well as the lawyer for the Respondent in light of the evidence and the magistrate’s notes as contained in the depositions. With regard to the First Ground I cannot find any error or bias in the learned magistrate’s refusal to summon or subpoena the three (3) policemen to give evidence on behalf of the Appellant. The Appellant, through his lawyer appears to me to form the opinion that it is the magistrate’s duty to summon a witness for a party. A magistrate or a court can summon a witness if it considers that the evidence adduced so far before it is insufficient. The Court does not have to summon a witness if it considers that the evidence before it was sufficient to prove the offence charged. Otherwise it is the party intending to call a witness on his behalf who summonses or subpoenas a witness. This is normally done so that if the witness who has been summoned fails to appear then other consequential orders can be made to compel the appearance of that witness.

So while the refusal referred to by Mr. Potane may be a refusal of the Appellant’s application, I do not consider that there was bias for reasons I have given above on the role of the court in summoning witnesses.

I accordingly dismiss the First Ground of appeal.

I also dismiss the Second Ground of appeal as Mr. Potane has not pointed out to me nor have I been able to find anything in the depositions that shows that the Appellant applied for adjournment after his application referred to in ground 1 was refused so that he could call village people who witnessed the incident to give evidence on his behalf.

Ground 4 is also dismissed as Mr. Potane has again not pointed out to me nor have I been able to find anything in the depositions showing that the Appellant was refused the right to cross-examine both the victim and his wife who were the only prosecution witnesses. It is clear from page 18 of the Appeal Book that the victim was cross-examined. The victim’s wife was also cross-examined as is clear from page 23 of the Appeal Book.

With regard to the Third Ground, the Appellant alleges in that ground that the evidence which the magistrate accepted was that he was not provoked but that he provoked the victim by his general conduct due to his drunken condition. I find that what the victim did as clearly explained by him in his evidence was that he used reasonable force to prevent the Appellant from continuing to behave in a manner that showed that he had no respect for the victim who was his superior at the time. Evidence clearly shows that the Appellant was off duty and in civilian clothes as well as being drunk. It was the Appellant’s persistence in wanting to go to Lae when the victim as Commander and his superior had already nominated policemen who were on duty to travel to Lae. One would have expected the Appellant as a member of a discipline force to be self-disciplined and respect authority. I therefore find this ground to be without merit so I dismiss it.

With regard to Ground 5 the Appellant relies on the words "the Court refused to accept his defence of provocation or self defence in the absence of any eye witness to corroborate his evidence or statement" and says that there was a mistrial where grave injustice was done to him. That ground with respect, does not assist the Appellant. He appears to have misunderstood what corroborative evidence is. Corroborative evidence is evidence which is called to support evidence given by another person. In the present case the Appellant did not call any evidence from another person to corroborate or support his evidence that he was provoked or acted in self defence so the magistrate was entitled to rely on the evidence of the victim and his wife to come to the conclusion that the Appellant was not provoked or was acting in self defence. I accordingly dismiss Ground 5.

The formal order of this Court is that the Appellant’s appeal is dismissed and the orders of the District Court are confirmed.
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Lawyer for the Appellant	:	Potane Lawyers
Lawyer for the Respondent	:	Public Prosecutor