DC8028
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
BETWEEN
POLICE
v
SYLVESTER SEKA AND ROBERT MUZO
-Defendants-
GOROKA: B GORE, Magistrate
2021:  24th of May & 1st and 2nd of June
CRIMINAL: CRIMINAL PRACTICE AND PROCEDURE –accused denied insulting the victim, words uttered were intended for two other persons standing in the direction of the complainant .Onus on prosecution to prove that insulting words uttered were in fact meant for the complainant.

CRIMINAL LAW – Evidence – Assessment of evidence - Logic and common sense play a major part in accepting or rejecting evidence and the guilt or innocence of an accused person. 

CASE CITED:
PNG cases. None
Overseas cases- Brown & Dunn (1893)67,HL
LEGISLATIONS:
District Court Act 
Summary Offences Act
Criminal Code S.269

COUNSEL-	
Prosecution-GITENE –Accused persons –appeared in person
FACTS
1.	Both accused comes from Lahame in Ungai Bena, where the Ungai Bena District Head Quarter sits, the complainant is wife of a police officer based at the Lahame District Police Station .On the 30th of April 2021 between 9 and 10 am, both accused person were at the Lahame Station with some friends drinking beer, not too far from the main Ungai Bena Bustop into town.
2.	 The complainant alleges that the accused person insulted the complainant with each saying the following. Sylvester Seka said ‘ kaikai kan na go bek lo ples blo upla na ketsim bus and ’Robert Muzo said ‘,kaikai kan mipla no mekim wanla wrong, mipla boss blo maunten’.Complainant alleges the accused  persons said the above insulting  words to her when she was at Lahame bustop to catch PMV to come into Goroka Town.

DEFENCE

3.	Both accused admitted saying those words but they did not said that to the complainant, they said that to two other young males  who were urinating at a creek close to the bus top .That creek is used for drinking water and what the two boys did were wrong so they said that to the two boys to protect their creek.

PROSECUTION EVIDENCE
4.	Prosecution called two witnesses, the complainant and Sgt Misiel who is the Rural Station Commander of Ungai Bena who is based at Lahame Police Station, The complainant basically said she was walking on the road at Lahame Staion to get on the bus to go to town and the accuse person uttered these words three times pointing to her and also signaling her to go back. She said she was about 2 to 3 meters away from them.
5.	The witness Sgt. Daniel Misiel, gave evidence of his encounter with the accused person earlier around 8am on that they, his evidence basically confirms accused being drunk at the Lehamae Station where the grand stand is, he stopped them from drinking in the public place but they did not obey him, he moved closer to them and the accused and their friends moved to the market area and were drinking there. He came to town and when he returned later around 3 and 4 pm he heard of the incident between the accused and the complainant and brought the accused persons to Goroka Police Station where they were arrested and charged with insulting words.

DEFENCE EVIDENCE
6.	Both accused person and another witness all gave very brief sworn evidence, Syvester Seka said he did not swear at the victim, He said she may have walked on the road to the bustop but he did not see her.
7.	There were lots of people at the bus stop ready to catch bus into town, he admitted seeing two other persons who were also at the bustop to go into town but went into the small creek beside the bus top and were urinating into the creek. He said he swore at them because they were unirating into the creek that his community used for drinking. He swore at them to stop them from doing the same in the future. 
8.	The accused Rober Muza also gave similar evidence, he did not see the complainant, and he only saw the two other boys who were polluting their drinking water so he told them that he’s the landowner and that they must refrain from urinating in the creek that the community used for drinking. 
9.	Their witness Spenti Maname said he was there at the relevant time .He said he was at the main Ungai Bena Bustop to come into town, he was a sober person and saw Lydia Tito/complainant about 100 to 150 meters away from the bus top, She was walking towards the bus top, he then saw two boys from the neighboring tribe who were also at the bus top to come into town, that two male then used the creek to relieved themselves and that how the accused persons got on them. The accused person did not point at the complainant as alleged,
10.	The two boys realizing that they were wrong responded that they were only urinating at the creek and walked to the back of the market house.

ASSESSMENT ON EVIDENCE
11.	Having seeing the above, it now begs the question whom to believe couple with motive for the incident, to start with, there is evidence of a brief  encounter between the accused and the Rural Station Commander earlier during the day  but a minor one, There is no connection either direct or indirect to the incident in question.
12.	Secondly, the evidence shows two boys were further down the same direction where the complainant was and they were urinating at the creek used for drinking so the words uttered were meant for them. Beside common sense would have it that there is no reason why the accused persons would have said such a thing to the complainant who is not only a stranger but a person who had no prior arguments /issues with the defendants.
13.	Thirdly, The prosecution case was not put to the accused persons to test its strength, at least the gist of the prosecution case  ,for example , The word you uttered were meant for the  complainant and not to the two  persons , a gross breach of the Rule in Brown & Dunn consequently the defense case still stands. Moreover the accused version of the story was not destroyed in any way in cross examination making them witness of truth.
14.	Furthermore the stories given by both accused persons are consistent and are more logical fitting to be true version of what happened, their demeanor in court was good. I have no reason to disbelieve their version of story.
15.	On the other hand the arresting officer and the complainant’s evidence are calculated and attempting to connect accused to the previous incident. It is more or less an imaginary evidence hence I do not  believe prosecution version of the story. If the prosecution is saying that the words uttered were in fact meant for the complainant, why not calling the two persons who were urinating at the creek to confirm that. 
16.	For reasons only known to the arresting officer, he left those two persons out. They could have provided good evidence to support the prosecution’s case.

CONCLUSION
i.	I am not satisfied that the prosecution has proven its case against the accused persons, as such both accused person are acquitted of the charge 
ii.	 Their  bail monies are refunded forthwith.