DC6028
PAPUA NEW GUINEA
[IN THE DISRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 74-76 of 2021

BETWEEN

POLICE
(Informant)

AND

KENNY MAYANI & ALBERT MUTUMAP
(Defendants)

Vanimo: B. Fehi
         2021: 18th June

CRIMINAL SUMMARY: Charge pursuant to Section 7 (a) of the Summary Offences Act – Trial commenced on plea of not guilty – need to outline elements of the offence – Onus on the prosecution to prove all elements of the offence beyond reasonable doubt – offence of threatening words not proven beyond reasonable doubt – offence of insulting words proven beyond reasonable doubt. Verdict of guilty returned against defendant Kenny Mayeni for insulting words.

CRIMINAL PARCTICE AND PROCEDURE: Allowable practice for court to find conviction on alternative offences not expressly provided for on the Police Information – Alternative charge of threatening behavior available and applied – Rule of interpretation, literal and grammatical construction rule and liberal and purposive approach – Literal being more appropriate for the wording of the provisions are so plain and clear that there is no need to employ any art of interpretation – police have established beyond reasonable doubt all elements of threatening behavior and verdict of guilty returned against both defendants.

Cases cited:

i.		The State v. Jacob Dugura Roy [2007] N3137;	
ii.		The State v. Paul Yepei No.1 [2004] N2570;
iii.		PLAR No. 1 of 1980 [1980] PNGLR 326;
iv.		Hagahuno v. Tuke [2020] SC2018; and
v.		Reference by the Principal Legal Advisor Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] SC1999

Legislation:

•	Summary Offences Act;
•	Constitution of the Independent State Of Papua New Guinea; and
•	Criminal Code Act

Representation:

Snr. Constable C. Manbo for the Prosecution

M. August from M. Smiley Lawyers for the Defendants

DECISION ON VERDICT

18th June 2021

1.	FEHI. B DCM: Defendants were charged jointly for the respective charges of threatening words and insulting words pursuant to Section 7 (b) of the Summary Offences Act. After close of the police case, Defendant Lynus Wampai was discharged through a successful no case submission. Trial continued for the two remaining defendants and this is now my ruling on verdict. 

RECORD OF PROCEEDINGS

2.	Subject to the information documents presented before me by the prosecution, all defendants when arraigned pleaded not guilty to the charges. Trial commenced on 07th May 2021, Police opened their case by calling 2 witnesses who gave sworn oral testimonies. At the close of Police case, Counsel August for the defendants made a no case submission upon which defendant Lynus Wampai was discharged from this proceeding. Matter was then adjourned to 12th May 2021 for trial to continue on the respective cases against the remaining two defendants, whereupon the defence called the defendants themselves who gave sworn testimonies with one other witness namely Terrence Sima, after which the defence closed its case. As agreed to by parties, the matter was adjourned to the 17th and 24th May 2021 for final submissions. Having received the defence submission with none from the prosecution, I adjourned the matter for ruling to the 18th June 2021. 

POLICE SUMMARY OF FACTS 

3.	On Tuesday 08th December 2020 between 1:35pm to 2:00pm the defendants were all at Vanimo Town within the vicinity of the Provincial Administration building complex, Vanimo Green District, West Sepik Province. It was on that mentioned date and time they met up somewhere in Vanimo town and discussed about their suspension, during which, Kenny Mayani took a hammer from the back of the Provincial Fisheries vehicle and walked to the Provincial Administration office with some timbers and nails. He went into the building and made his way to the Provincial Administrator’s Office. He was at all material times accompanied by Lynus Wampai and Albert Mutumap. They then threatened and swore the Administrator’s Secretary namely Mrs. Rose Thomson and ordered her to leave her work station and get out from the Provincial Administrator’s Office front desk. They threatened her by saying “Yu Kam aut hariap lusim displa office! Nogat bai mipla paitim yu”! She replied and they responded with swearing “Fuck! Kan!” All these happened while she was still at her work station inside Provincial Administrators Office.   

THE OFFENCE AND ITS ELEMENTS

4. 	The charges were brought pursuant to Section 7 (b) of the Summary Offences Act. This provision is worded and appears in the following form:  

	7.	Provoking A Breach of the Peace

	A person who –

a)	Uses threatening, abusive or insulting behavior; or
b)	Uses threatening, abusive or insulting words; or
c)	Makes threatening, abusive or insulting gestures;

with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence. 

5.	I have expanded a considerable amount of time flipping through a number of online District Court reported cases on Pacific Islands Legal Information Institute (Paclii) database to identify cases where my learned colleague Magistrates outlined elements of the offence charged pursuant to the above provision. With respect, I was unable to locate a District Court judgment on point and it is my view that given such a vacuum, it is important to emphasis the need for us within the lower courts to start outlining elements of offences under our Summary Offences Act. As such I will attempt to set out what in my view are the elements of the above charges. This I now do and the following is what I consider to be the elements:

a)	A person, that is, the identity of the defendant or defendants;

b)	Description of a criminal conduct or behavior perpetrated by the defendant/s, that is, the insulting words and/or action, the threatening words and/or action, the abusive words and/or action; and

c)	The criminal conduct or behavior is perpetrated with the intention to commit a breach of the peace, or where it took place there is a likelihood of a breach of the peace taking place. That is, the defendant/s behaved disorderly in a manner that is like to disturb public order. 

6.	My application of the above identified elements to the respective contentious version of events will determine whether I find beyond reasonable doubt on all elements in favor of the prosecution or hold otherwise and find in favor of the defence the existence of doubt on the elements.  

POLICE EVIDENCE AND SUBMISSION  
	
7.	This is what the prosecution provided as their version of events through the sworn testimonies of their witnesses.  

8.	In brief, Police key witness Mrs. Rose Thomson gave oral testimony that on the 08th December 2020 between the hours of 1:00pm to 1:30pm she was stationed at her usual work area within the Provincial Administrator’s Office main reception. The three defendants approached the area where she was and forced her to leave the work station. She asked if she could be given time to remove her bag and phone from the office but they aggressively demanded her to leave by saying “yu kam aut hariap, sapos u no mekim ba mipla paitim yu”. They also swore at her by saying “Fuck Kan”. After all these she left the Provincial Administrator’s Office and came out onto the main Administration reception area, the defendants than took a timber which they had brought along with them and nailed it to the door of the Provincial Administrator’s Office.

9.	When questioned by the prosecutor, witness confirmed that she knew the three defendants very well and they are like brother colleagues to her. Questioned as to what swearing words they used, witness confirmed them saying “Fuck kan” towards her. Also she was asked to confirm her whereabouts at the time the defendants approached the Provincial Administrator’s Office and she re-affirmed that she was at her work station when they arrived. Further she confirmed that the defendants nailed a timber to the door of the Provincial Administrator’s Office. 

10.	When challenged through cross-examination, witness maintained that the 2 defendants had issues with the Provincial Administrator that was why they approached the office. She agreed with defence counsel that swearing words were not directed at her, however, she clarified that they ordered her to get out and whilst they were in the office they made those swearing words. She maintained that, while in her presence they acted aggressively directing her to leave. When asked as to who amongst the two defendants swore and threatened her she mentioned both defendants Kenny Mayani and Albert Mutumap. When asked to be specific she pointed out that defendant Kenny Mayani to be the one who swore at her. Counsel queried as to why it took that long for this matter to be prosecuted before the Court, she replied saying that it was an administrative matter.

11.	The second police witness Mr. Eric Sakin provided supporting oral testimony to Mrs. Thomson by briefly stating that he came inside the office after hearing noises, something like a commission. He then heard voices saying, “Kam autsite lon opis bifo mipla paitim you.” He again heard them saying “Fuck Kan”. He then proceeded to where they were nailing the timber to the door of the Provincial Administrators Office. He saw defendants Kenny and Albert nailing the timber, Lynus Wampai sat outside the couch in the Executive Office. There was also another person with them named Kevin Muriki.

12.	When questioned by the prosecutor as to whom exactly amongst the two defendants uttered the words he heard, he replied saying that he could not tell, he only saw three persons the two defendants and Lynus Wampai.

 13.	When challenged through cross-examination he maintained that during the commotion, he entered the office and saw the 3 individuals, however, he was not sure as to who was the one who swore. 

14.	The prosecution made no submission, Snr. Const. Manbo asked the court to make a ruling based on the evidence provided through the above witnesses’ oral testimonies.

DEFENCE EVIDENCE AND SUBMISSION

15.	For the defence I will borrow and reprint for my consideration the summary as contained in the defence submission on verdict under paragraphs 11, 12, and 13. 

16.	The accused Kenny Mayeni gave evidence and denied committing the offences of threatening or insulting words. He denied ever directing his actions if threatening or insulting words, towards Rose Thomson.

17.	Upon cross examination by the police prosecutor, he stated and agreed that they went into the Provincial Administrator’s Office Reception and they were aggrieved suspended West Sepik Provincial Administration officers. He further stated in cross examination that Rose Thomson may have heard swearing but himself Kenny Mayeni was trying to hold the timber planks and swore once only “Fuck! Kan!” but it was not at her Rose Thomson. Rose Thomson was leaving and by that time she was outside the main Provincial Administrator’s Office Reception door.

18.	The accused Albert Mutumap gave evidence and denied committing the offences of threatening or insulting words. He denied ever directing his actions if threatening or insulting words, towards Rose Thomson.

19.	Upon cross-examination by the police prosecutor, he stated that all three of them the Co-Accused were present in the main Provincial Administrator’s Office Reception area. There were plenty persons present but he couldn’t pick out who actually swore when asked about the insulting words said and who stated them.

20.	The witness Terence Sima gave evidence supporting the Co-Accused. He stated that he was seated in the main Provincial Administrator’s Office Reception area. He supported the Co-Accused denial in committing the offences of threatening or insulting words. He supported their evidence that none of their actions were ever directed towards Rose Thomson. Upon cross examination by the police prosecutor, he stated that all three (3) of the Co-Accused where present in the main Provincial Administrator’s Office Reception area. Kenny Mayeni sword but this was not directed at Rose Thomson. It was from frustration in the PA not having any audience with them the officers.

21.	Counsel August correctly asked this court to consider whether the prosecution has proven the allegations against the defendants beyond reasonable doubt, this in my view is the primary task in any criminal trial, which I must as a matter of law and practice do. Counsel than referred me to the observations made by their Honors Davani J (as she was then) in the case of The State v. Jacob Dugura Roy [2007] N3137 and Kandakasi J (as he then was) in the case of The State v. Paul Yepei No.1 [2004] N2570.

22.	Defence submitted that I should be guided by the approach taken in The State v. Jacob (supra) and in doing so accept in their favor that the prosecution through their evidences has failed to establish the elements of both the offences beyond reasonable doubt. Counsel also submitted that the test formulated by Kandakasi J, in The State v. Paul Yepei (supra) is relevant for my application as the prosecution through their evidences failed to convince me of no other hypothesis other than the guilt of the defendants. There is according to the defence doubt in the prosecution’s case against the defendants.

23.	The crux of the defence submission hinges on the assertion that the police have not dispense with the onus of proving that the alleged insulting and threatening words were directed or intended for their key witness Mrs. Rose Thomson. For there exists without being fully extinguished other hypothesis other than what the police claimed through their evidences.       	

RELEVANT ISSUES

24.	All contentious points raised by the respective sides to this proceeding boils down to the following main issues:

A.	Whether the prosecution has established all the elements of the offences of insulting and threatening words beyond reasonable doubt?

B.	If so, whether it is a necessary requirement for prosecution to prove that the insulting words and threatening words were directed to and intended for the victim?

COURT’S ANALYSIS

25.	The prosecution is bound to ensure they dispense with the requirement of proving their case against the defendants beyond reasonable doubt. On the contrary the defence bears the challenge of creating doubt by any means to defeat any attempts to establish the respective elements convincingly.

26.	The first issue of whether the prosecution has established all the elements of the offences beyond reasonable doubt prompted the calling of two witnesses. Mrs. Rose Thomson the key witness for the prosecution gave evidence to confirm the date, time and location where the allegations arose out of. Through her testimony, the defendants’ were clearly identified and placed at the location were the allegations transpired. Her evidence was corroborated by Mr. Eric Sakin the second prosecution witness. The question that now arise is has the defence successfully challenged the prosecution’s version, I will answer it with a no for both their testimonies further corroborates Mrs. Thomson. They never, at any one time throughout their stories claimed to being somewhere other than the Provincial Administrator’s Office Reception area at all material times. I find in that context, the prosecution to have satisfied the first element of the charges.

27.	As for the second element still within the first issue, the prosecution produced through their key witness evidence identifying defendant Kenny Mayeni as the one who uttered the obscene words “Fuck! Kan!” As for defendant Albert Mutumap, I agree with the defence and by applying the approach suggested by Counsel August as enunciated in the State v. Jacob Dugura Roy (Supra) and the test formulated in The State v. Paul Yepei No.1 (supra), I find the prosecution to have failed to provided convincing evidence to confirm that he did at the material time uttered insulting words. Taking the same approach, I also find further, that the prosecution also failed to provide convincing evidence of him making any threatening words. I am also not convinced by the evidence before me that defendant Kenny Mayeni made any threatening words at the material time. Therefore, I find in the prosecution’s favor only the second element of insulting words against the defendant Kenny Mayeni, the element of threatening and insulting words against Albert Mutumap was not establish beyond reasonable doubt, likewise the element of threatening words against defendant Kenny Mayeni must also fail.

28.	 Coming to the third element, I find in both versions before me quite a large degree of agreement, such as, both agreed that the defendants were top executive managers within the West Sepik Provincial Administration, they were aggrieved with a decision of the Provincial Administrator which had directly affected their status within their employer, they tried to have an audience with the Provincial Administrator but believed they were deliberately denied that opportunity, they were frustrated and intended to confront the Provincial Administrator at the material time with their grievance and the Provincial Administrator’s non availability provoked their action of nailing a timber to his door. All this are very convincing for me to find that the prosecution has established this element without much challenge from the defence. I find in favor of the prosecution on this element.

29.	The second Issue of whether it is necessary for the prosecution to prove that the actions of the defendants were directed to and intended for the victim, in my view, forms the crux of the defence’s case. This imposes upon me the task of viewing the evidence in line with how the provision is worded within the Summary Offences Act. This is a question of interpretation of the wording within Section 7 of the Summary Offences Act. To attempt this, I am guided by the higher courts approach over the years culminating in the Supreme Court decision in PLAR No. 1 of 1980 [1980] PNGLR 326. The court adopted and applied as relevant within our jurisdiction the following two style of interpretation:

a)	Literal or Grammatical Rule were the words used in the provisions are to be given their natural or ordinary meaning; and

b)	Liberal Interpretation or Purposive Approach, were the reader interprets according to what he believes the legislature reasonably intended.

30.	The Supreme Court in Hagahuno v. Tuke [2020] SC2018 in its dealing of an election related questions of law, gave a well-researched opinion on the difference in application and described the situation of most relevance. The majority view favors the use of the liberal or purposive approach in the interpretation of Constitutional provisions and that of other subordinate legislations. As per Kandakasi DCJ, there are two well-known exceptions to the court’s position. The first of the two exceptions are in cases where the words used in the legislation are so plain and clear that no art of interpretation is required. The second exception is in the area of tax legislation, where the strict interpretation rule applies. To invoke the liberal or purposive approach it is a necessary requirement to give reasons to justify why the liberal approach appears irrelevant. This point was raised and discussed by the Supreme Court in the matter of Reference by the Principal Legal Advisor Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] SC1999.

31.	Having made the above observations, I am satisfied that a literal or grammatical interpretation of Section 7 is most appropriate and will according to Section 158 (2) of the Constitution of the Independent State Of Papua New Guinea, be an act of giving paramount consideration to the dispensation of justice. That is, the words of the provision are so plain and clear that no art of interpretation is required. 

32.	I am of the view that Section 7 is plain and clear and that I am only required to consider evidence to the required standard as to whether the defendants used threatening, abusive, or insulting words with intention to provoke a breach of the peace or were a breach of the peace is likely to take place. It is in my humble view not a necessary requirement for the prosecution to prove that the criminal behavior was directed to and intended for Mrs. Thomson, the victim. In saying these, I am inclined to follow the line of argument introduce by Counsel for the defence.    

33.	At this juncture, the prosecution has established the element of identity through their evidence and the element of defendants’ disorderly conduct in a manner that is likely to disturb public order. As alluded to I agree with the defence and accepted that the prosecution had failed to prove beyond reasonable doubt defendants’ use of threatening words, as for insulting words, I only found evidence against defendant Kenny Mayeni and not Albert Mutumap. I now ask myself, is it permissible given the outcome I have reached, to consider conviction on alternative offences other than that which appeared on the Information. 

34. Section 7 of the Summary Offences Act in my view is similar in application to the homicide offences prescribed under Section 299, Willful Murder, Section 300, Murder and Section 302, Manslaughter of the Criminal Code Act. It is a common practice of the higher courts to convict accused indicted for willful murder on lesser offences of murder or manslaughter. The Criminal Code Act, through the application of its Section 539 and Section 542 allows for this practice and in the absence of any such provision or practice guidelines applicable before the District Courts, I find it relevant and appropriately apply this approach to deal with the matter before me. It is not necessary for a separate Police Information to be registered specifically containing other charges to enable me to convict, should there be evidence made out by the prosecution. Reference is made to the matter of Reference by the Principal Legal Advisor Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] SC1999. I find this judgment relevant for application before the District Courts and agree that similar to an indictment, it is not necessary for information to be registered against an accused person to allow the District Courts in the exercise of its summary criminal jurisdiction to find and convict on an alternative charge/s. However, the catch is, the original charge must be one that leads to a specific result that which the alternative offence also leads to. 

35.	The literal interpretation of Section 7, in my view, appears to describe three different forms of inappropriate conduct, that is, through words, behavior and gestures all must go purposely to cause a breach of the peace or where a breach of the peace is likely to take place, this would appear for all intent and purpose as the same specific result. Therefore, the prosecution through their witnesses has provided sufficient evidence to prove that the defendants’ Kenny Mayeni and Albert Mutumap behavior were inappropriate and threatening in nature. That is, they approached the Provincial Administrator’s Office Reception not in a normal state of mind. They appeared to be frustrated and proceeded to nail a timber to the door of the Provincial Administrator’s Office. It is reasonable to infer that they had with them objects like hammer, nails, and timber and approached the office intending to use these objects for an improper or illegal means. Any member of the public would in my view feel threatened by such behavior or conduct. As such I accept that despite not providing sufficient evidence to prove the charge of threatening words, I am satisfied that the prosecution has made out a case for threatening behavior on both the defendants under Section 7 (a) of the Summary Offences Act.

36.	With the above findings, I accept the prosecution to have proven the charge of insulting words against the defendant Kenny Mayeni. The prosecution has also proven the alternative charge of threatening behavior on both defendants. I am satisfied the prosecution have dispense with the onus of proving the respective charges beyond reasonable doubt and it is credible to accept that their appears to be no other hypothesis but only one and that is, their actions have caused a breach of the peace at that relevant time and place of the offence.

FINDINGS

37.	I will therefore base on the above return a verdict of guilty for the charges of insulting words and threatening behavior on defendant Kenny Mayeni and verdict of guilty for the charge of threatening behavior on defendant Albert Mutumap pursuant to Section 7 (a) (b) of the Summary Offences Act.

VERDICT  

38.	Defendant Kenny Mayeni is Guilty for the charge of insulting words and threatening behavior pursuant to Section 7 (a) (b) of the Summary Offences Act.

39.	Defendant Albert Mutumap is Guilty for the charge of threatening behavior pursuant to Section 7 (a) of the Summary Offences Act.

40.	Matter is now adjourned for sentencing, bail for the defendants are extended.