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Police v Irepo [2016] PGDC 1; DC2075 (15 June 2016)

DC2075

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.7372 OF 2015

BETWEEN:

POLICE

-Informant-

AND:

CHARLIE IREPO

-Defendant-

Boroko - NCD: A. Kalandi

2016: 15^thJune 2016

DECISION ON VERDICT

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part iii, Protection of Persons, Section 6(3) Unlawful Assault.

Counsel : Constable Malani Uwano– Police Prosecution

Mr. Charlie Irepo– In Persons

Laws:

1. Summary Ejectment Act

Cases cited
Nil

KALANDI. A. DCM: The accused was charged for one count of assault contrary to Section 6(3) of the Summary Offence Act. The charge reads; The Defendants did unlawfully assault another person, namely Lucy Walo, by using a bush knife and swinging upon her neck.

POLICE BRIEF

The Police allege that the accused, Charlie Irepo on the 16^th August 2015, unlawfully assaulted the victim, one Lucy Walo at Morata, Waigani, and National Capital District.

The Defendant pleaded not guilty to the charge and so a trial was conducted. The police called three witnesses that is inclusive of the victim and the defence called four witnesses that is also inclusive of the accused himself.

THE ELEMENTS OF THE CHARGE

For a conviction to be entered against the Defendants, the elements of the offence must be set out by the police.

Thus, the elements of unlawful assault per Section 6(3) of the Summary Offence Act are;

(i) A personunlawfully assaulted by application of force
(ii) Another person

ISSUES

The issue for the Court to determine is whether or not the Defendants unlawfully assaulted the victim, one Lucy Walo.

EVIDENCE

Police Evidence

1^st Witness – the victim

The victim, Lucy Walo said, the accused is married to her daughter, Sussie and they have lived together for ten years and as a result a child was born, died and was buried. The accused went home and returned with a new wife after paying bride prize so her daughter on the 16^th August 2015, went to the accused house to collect her belongings.

She said, at that time the accused placed bush knives in many locations in his yard and swang the first knife at her and she sustained injuries to her body. This bush knife was taken and broken and the accused used another one and said, Bomana was his man house. She said, the accused used three knives and one was taken by her and the other two were taken by other people there.

In cross examination the accused said he did not cut her and the victim said he cut her. When the Court asked where she was when the accused cut her, she said she was at the door looking into the house. When asked what direction the accused attacked her from, she said from the back.

2^nd Witness – SussieKewa

This witness said, the accused lifted a black handle bush knife and said, Bomana is my home, I’ll finish Lucy Walo’s life. She went to pack her things in the house as accused was her husband. She said she was at the door facing the door and accused approached from front of the house.

The bush knife was tendered as Exhibit P1 for the prosecution and accused confirmed it was the knife used by the victim to assault him.

In cross examination, the accused said he did not bring the knife, it was with the witness that he pulled out from her and witness said it was the accused knife.

When the Court asked where the accused got the knife from, she said from the piggery. When asked where she was, said she was at the front of the victim and asked which direction the accused attacked the victim, said from the front of the victim.

3^rd Witness – Aisy Tame

This witness said, after church this time the accused b rough a brown handle bush knife and put it on the victim’s neck. The accused and Sussie were pulling the knife to and fro and the accused brother came and stopped them and the victim got the knife. She said she was there at the front of the house.

In cross examination, accused said Sussie had the bush knife he didn’t bring it and she said the accused had it.

When the Court asked whether she was at the front or back of the victim, she said she was at the front. When asked where the accused attacked from, she said the accused was there already and the victim came later, when asked where the victim was when attacked, said Sussie was breaking the door, the accused was there, the victim came later and accused cut her.

Defence Evidence

1^st Witness – Accused

The witness said, Sussie was his first wife for ten years, but she left him in 2013. From 2013 to 2015, he waited for her to return but she didn’t return so in July 2015 got a new wife and paid a customary bride prize of K5, 000.00 and 20 pigs and took her to Port Moresby. They came down on a Friday and the next day which was a Saturday, Sussie came with Lilly and Manga and assaulted his wife with a bush knife. He went and reported the incident at the Waigani Police Station, but was referred back to be settled at the community. On Sunday, when he was waiting with the community leaders for Sussie and her team to settle, she went with Lucy Kewa, Waro and other ladies to my house and broke my house. He said, these ladies took the knives with them and broke his house and when alerted he went and got the knife Lucy was holding. A while later, many people came and took the knives from them and stopped us.

In cross examination, when asked he took the knife with him when he heard that his house was broken, he said no.

2^nd Witness-Genem Uguma

This witness said, on Saturday, Sussie and her family mobilised and went and assaulted the accused wife and on Sunday, Sussie mobilised again and came with seven ladies and broke the door of the accused house. They were armed with knives and went into the house and got everything from the house. When the accused walked toward them, all the ladies walked toward him. The accused and Sussie were then struggling with the knife Sussie was holding and people came and stopped them.

In cross examination, when asked that the accused attacked them with the bush knife, said no accused was never there, he came from the outside of the premises. When asked who then had the knives, said the ladies had the knives.

3^rd Witness – Alfred Narobu

The witness said, as he was the accused next neighbour, he heard the noise and went over and saw the accused, Sussie and Lucy (Sussie’s step mother) on each side and Sussie and Lucy were holding bush knives. The accused was struggling to take the knives from them. He said there were also other ladies who had knives and he told them why they broke the accused house. The marks of the bush knives used to break the accused house door are there.

4^th Witness – Bedsida John

The witness said, Sussie came with other ladies and broke our house door and got everything. Suusie was holding a bush knife and accused was struggling with her to get the knife, which later people came and stopped them and got the knife.

SUBMISSION

As the Defendant wasunrepresented, submissions were not made. The Court will make its findings as per the evidence before it and give its Ruling.

ASSESSMENT OF EVIDENCE

I have carefully observed the demeanour of all witnesses and was not impressed with the prosecution witnesses. The victim gave evidence that she was attacked from the back by the accused with three bush knives and as a result sustained injuries to her body. She failed to show to the Court the nature of the injuries and the body parts on which the injuries were inflicted or any further evidence to confirm the injuries possibly in the form of a Medical Report.

The evidence of Sussie was that the accused used a bush knife to cut the victim, the knife was taken from the piggery and attacked from the front of the victim. This evidence contradicts the evidence of the victim.

The evidence of one witness, Aisy Tame was that the accused brought a brown handled bush knife and put it on the victim’s neck. She said the accused and Sussie were struggling over the knife, but did not assert as to what point in time they were struggling over the knife. She said she was there at the front of the victim but didn’t tell the Court as to how and what direction the victim was attacked from. Her evidence was contradictory.

When the Court asked, whether she was at the front or back of the victim, she said she was at the front. When asked where the accused attacked from, she said the accused was already there and the victim came later. When asked where the victim was when attacked, said Sussie was breaking the door, the accused was there, victim came later and accused cut her.

It was out of logic for one to attack with three bush knives. Prosecution evidence was not truthful, reliable and that it was contradictory. The evidence did not go to the satisfaction as to where the assault was inflicted, how it was inflicted and further no corroborative evidence like a medical report. The evidence of one Aisy Tame said, the accused cut the victim’s neck but her evidence was not trusted and taken as reliable as she does not know where, when and from which direction the victim was attacked.

There is no explanation as to why thee accused attacked and assaulted the victim. For any action to take place there must be an occurrence of events that triggered it. Here the prosecution evidence does not go to that extend thus the attack by the accused is not justified.

The accused evidence and that of his witnesses were truthful in the opinion of the Court. The accused said when he heard that Sussie and her team were breaking his house, he went from where he was staying with the community leaders to mediate the event that unfolded the previous day where Sussie and her team went to his house and assaulted his wife. I believed the accused story that he went there without and knife and he struggled with Sussie to get the knife that was in her possession. I also believe the accused story that Sussie and her team were armed with bush knives which are also corroborated by the other defence witnesses and that the knives were taken off them by the people who stopped them.

The evidence of Alfred Norobu is very reliable as he describes the impact of the knives mark on the door of the accused house when it was broken. This tells that the team that went with Sussie had the knives with them.

The main consideration for this Court to now determine is, as to whether the accused is guilty or not of the charge against him is that the essential elements of the offence are established by the prosecution by way of the prosecution evidence now before the Court.

ELEMENTS OF THE OFFENCE

For a verdict to be entered, the prosecution must satisfy to the satisfaction of the Court that the elements of the offence are set out as per the evidence. For purposes of this hearing, the elements of the charge are as set out hereunder;

(a) That the Defendants unlawfully
(b) Assaulted the victim by inflicting injuries on his person

The prosecution evidence has failed to establish that the accused assaulted the victim. If there was any assault, the prosecution evidence also failed to establish that the accused assaulted and inflicted the injuries on the victim. By virtue of s6 (3) of the Summary Offences Act, one has to attack another person and injuries inflicted as a result of the attack.

I am therefore of the view that the elements of the charge are not established and that a verdict of not guilty is returned against the accused.

COURT ORDER

1. The charge is therefore dismissed
2. The accused is acquitted and
3. Discharged
4. The bail money of K300.00 to be refunded.
   

For the Prosecution: Ms Malani Uwano – Police Prosecutor

Lawyer for the Defendant: Mr. Irepo in person

COURT ORDER

1. The Defendants are in possession of the property described as Section 237, Lot 60, Hohola, Gerehu, Stage 2, National Capital District without any right, title or license.
2. The Defendants are ordered to voluntarily give possession of the property described as Section 237, Lot 60, Hohola, Gerehu, Stage 2, National Capital District until the 31^st December 2014.
3. Cost against the Defendants
   

Lawyer for the Complainant:Wasi Lawyers

Defendant: No Appearance